Revenue removes retroactive collection of IOF for banks, but taxpayers still face uncertainty

Revenue rules out retroactive IOF charges for banks, but taxpayers still face uncertainty

By Bruna Lessa — Brasília

Receita Federal removed the need for retroactive collection of IOF by financial institutions after the minister's decision Alexandre de Moraes, of the Federal Supreme Court (STF), which suspended the effects of the legislative decree that revoked the previous act of the government. However, the scenario remains uncertain for taxpayer companies, according to an assessment by lawyer Bernardo Leite, partner at ALS Advogados.

— The Federal Revenue note eliminates the need for retroactive payment of the IOF by those responsible for taxes, the majority of which are banks. For companies, the IRS simply stated that it is still evaluating how it will proceed, clarifying that it intends to avoid surprise and legal uncertainty — explains Leite.

In the lawyer's assessment, even though the IRS has signaled that it does not seek to adopt an aggressive stance, the risk of action for companies has not been completely ruled out. Therefore, the recommendation is to be cautious regarding any hasty decision to collect tax.

— It is worth remembering that the law, addressed in the Normative Opinion that the RFB cites, removes the late payment fine for 30 days from the decision that removes the suspension of the tax requirement. This means that companies must take this deadline into account to monitor developments on the matter, remembering that the STF's decision is not yet final and can be changed.

Another point of attention concerns late payment interest. Although there is no specific legal provision, the lawyer points out that, as the payment was made based on the rules in force at the time, it is possible to discuss whether this interest is due or not.

— The main care at the moment is not to rush into collecting the tax until further clarification is available. I understand that the decision was not clear regarding retroactivity and should be subject to a motion for clarification to clarify its application. If this is not done, the RFB will have to provide further clarification on retroactivity for companies — he highlighted.

What do experts say about Moraes' decision?

Minister Alexandre de Moraes decided yesterday to maintain most of the government decree that increased the Tax on Financial Operations, revoking only the charge for “drawn risk” operations. Moraes is the rapporteur of four actions in the STF that deal with the decree, which caused a dispute between the Executive and Congress. The decision will still be endorsed by the Court's plenary.

The decision by Minister Alexandre de Moraes, of the Federal Supreme Court (STF), to exclude the collection of IOF on withdrawn risk transactions was well received by experts in tax law, who consider the measure to be correct from a constitutional point of view. For them, the government exceeded its competence by trying to tax, via decree, an operation that is not classified as credit — and, therefore, cannot be achieved by this tax.

The withdrawn risk is a type of anticipation of receivables, widely used in business. In it, the supplier sells in installments to a buyer, gives the credit to a financial institution and receives it in advance, with a discount. The final payment obligation falls on the buyer — the so-called “drawer”.

Despite this, the federal government tried to equate this operation to a credit contract and, as a result, included the risk withdrawn in the IOF tax base through Decree 12,499/2025. The objective was to increase revenue, at a time of effort to cover the fiscal deficit. The National Congress reacted and suspended the effects of the decree. Now, the STF has reinstated almost all sections, with the exception of the point that specifically dealt with the risk withdrawn.

— The IOF can only apply to credit operations expressly provided for by law, and the risk withdrawn has never been classified as such — said Djalma Rodrigues, partner in the tax area at Miguel Neto Advogados. — Decree can only change tax rates, not create new taxable events — he added.

For Donovan Mazza Lessa, partner at Maneira Advogados and member of the Brazilian Association of Financial Law (ABDF), the decree violated the principle of tax legality.

— The Presidential Decree included the risk identified in the field of incidence of the IOF, exceeding the constitutional limits of delegation to the Executive. This was precisely the conclusion of Minister Alexandre de Moraes.

The revenue aspect of the measure was also criticized. According to tax expert Gustavo Taparelli, from Abe Advogados, the government's focus was to increase revenue based on a tax that, by definition, has an extra-fiscal function — that is, it must serve as an instrument of economic policy, and not direct collection.

— The government is increasing the tax rate to cover the deficit in the fiscal deficit, and the objective of this tax is to regulate it. This is not a credit operation, he is not taking out a loan or entering into this IOF system. I understand the taxation of the withdrawn risk operation to be incorrect.

https://oglobo.globo.com/economia/noticia/2025/07/17/receita-afasta-cobranca-retroativa-de-iof-para-bancos-mas-contribuintes-ainda-enfrentam-incertezas.ghtml