The Brazilian Superior Court of Justice (STJ) issued an important decision that could directly benefit Brazilian investment advisors to adhere to the simplified tax regime “Simples Nacional”.
By partially accepting an appeal from the Brazilian Association of Investment Advisors (ABAI), the court paved the way for the inclusion of these professionals into such simplified regime.
See below the main points of the STJ decision:
1. Partial decision in favor of ABAI: The STJ partially accepted the special appeal filed by the Brazilian Association of Investment Advisors (ABAI), opening up the possibility for investment advisors to join the Simples Nacional tax regime.
2. Context of the controversy: The discussion began in the Regional Federal Court of the 3rd Region (TRF-3), which equated investment advisors with financial intermediaries, such as Securities Brokers (CTVM) and Securities Distributors (DTVM). This classification excluded them from the Simples Nacional, resulting in a higher tax burden.
3. ABAI’s argument: ABAI argued that independent investment agents perform intellectual activities, regulated by the Brazilian Securities and Exchange Commission (CVM). These activities consist of intermediating relationships between clients and brokerage firms or securities dealers, without characterizing financial intermediation, as is the case with brokerage firms.
4. STJ’s understanding: The STJ recognized that the services provided by independent investment agents do not qualify as financial intermediation. The decision partially accepts ABAI’s arguments, rejecting the understanding that independent agents are equivalent to financial institutions.
5. Impact of the decision: This is a relevant precedent for investment advisors in Brazil, bringing them closer to the possibility of joining the Simples Nacional. The decision may influence future instances, especially if the TRF-3 reconsiders the issue based on the STJ’s guidance.
This decision reinforces the possibility of a fairer tax regime for investment advisors, setting an important precedent in the Brazilian legal system. Although it is not yet definitive, it brings hope to the sector and signals an evolution in tax interpretation in favor of these professionals.
