Marco legal dos criptoativos: aspectos regulatórios e tributários no Direito Brasileiro

Abstract

This dissertation aims to analyze the Brazilian legal framework for virtual assets, established by Law No. 14,478/2022, and intends to indicate which legal rules apply to the Brazilian digital assets market, the public entities regulating this market and the challenges in supervising the sector , in addition to identifying the main problems regarding the taxation of cryptoassets and whether gaps still persist after the publication of the legal framework. As a research methodology, the hypothetical-deductive approach method and bibliographic research techniques, judicial and administrative decisions, as well as governing legislation were used. It starts by establishing different perspectives on state regulation, examining the power relations involved and the constitutional conformation of the topic, as well as the influence of the Economic Freedom Law on the legal relations emerging from it. The historical analysis of the topic is covered, contextualizing the emergence of Bitcoin and cryptoassets, as well as the growth of the sector up to the current scenario. The legal framework of virtual assets is detailed, with emphasis on Law nº. 14,478/2022 and fundamental concepts such as the definition of virtual assets and providers of virtual services are indicated, assuming that a crypto-asset can have the legal nature of currency national or foreign, financial asset, title or security, payment arrangement, among others. It is proposed that these assets can be classified into digital tokens, payment cryptoassets, utility cryptoassets and investment cryptoassets, according to the functionalities they add. The Central Bank is identified as the preferred regulator and the possibility of regulation, when faced with a cryptoassets similar to a security, by the CVM. It also concerns the adaptation of service providers to the new regulation, including the application of the Consumer Protection Code and its impact on some specific legal relationships. The taxation of cryptoactives is also addressed, with emphasis on the incidence or not of IOF, ICMS, PIS/COFINS and CSLL, as well as the associated tax planning. The tax implications for users, holders, investors and intermediaries of cryptoassets transactions are examined, as well as some aggressive tax planning arrangements used to reduce the tax burden. Finally, the use of cryptoassets as instruments for currency evasion is discussed, analyzing the associated risks and regulatory challenges. It is concluded that, despite advances in regulation, there are still gaps and the rapid evolution of the cryptoassets market requires constant updating of standards and effective surveillance to guarantee the protection of investors and the integrity of the financial system. Regulatory challenges are highlighted, especially in relation to virtual asset service providers established abroad and the possibility of currency evasion due to this gap in legislation. In summary, this dissertation contributes to the understanding of the legal and fiscalcomplexities of cryptoassets, highlighting the importance of a balanced regulatory approach that promotes innovation while ensuring consumer protection and economic stability.