Contract for the opening and maintenance of a transaction account and the tax levied on financial transactions in Brazil (IOF): non-characterization of a loan

Abstract

This article intends to examine, from a perspective ranging from the legal provisions to Supreme Court precedents, whether the contracts for opening and maintain a transaction account in financial institutions are considered to be a loan for tax purposes (specifically, the tax levied on financial transactions – IOF). Firstly, we shall understand how loans are defined under article 63, I, of the Brazilian National Tax Code and the case law of the Brazilian Supreme Court. After this analysis, we shall understand the concept of such contract under the doctrine of Private Law scholars, in order to better comprehend the content and elements of such contract. Finally, the paper will address whether such contracts imply the execution of a loan. The paper advocates that these sorts of contracts do not imply the execution of a loan and, therefore, are not subject to IOF taxation, since they have the purpose to ease business relations between the parties through a common bank account.