Investment funds are entities without legal personality. One of the main practical implications of this is that, in theory, it is impossible for an investment fund to be considered a taxable entity. This ensures that taxation is carried out at the level of the fund’s shareholders, and not on the actual fund and its portfolio.
The legislation allows for the possibility of linking investment funds to legal entities for tax purposes, in cases where the funds are introduced into corporate structures with the clear and exclusive purpose of tax savings (as provided for in art. 2 of Law No. 9,779/1999).
However, Complementary Law No. 214/2025, which regulates the Tax Reform and establishes new taxes on consumption, considers investment funds as contributors to the IBS and CBS by including them in the concept of “suppliers” (art. 3, § 2).
In addition, the article of the Complementary Law that excluded FIIs and Fiagros as contributors to the IBS and CBS was vetoed by the President of the Republic on the grounds that there was no constitutional authorization to grant specific tax incentives to investment funds.
To identify the real practical effects of the tax reform on investment funds, it is necessary to analyze the composition of the portfolios of these funds.
The tax impact is essentially aimed at FIIs and Fiagros because, strictly speaking, the portfolios of these funds can carry out onerous transactions with goods and services (such as real estate leasing, in the case of FIIs-Tijolos). If the veto is upheld, the expectation is that the profitability of these funds will be compromised, which will have a direct impact on the income of the fund quotaholders.
FIPs are not impacted by the new rules in the post-consumption tax reform scenario because their portfolios are substantially focused on the purchase and sale of equity interests, practices excluded from the materiality of the IBS and CBS (as provided for in art. 6, III, of Complementary Law No. 215/2025).
The National Congress may overturn the presidential veto to ensure that the portfolio of FIIs and Fiagros is not taxed, in compliance with the rationality of the general rule that funds do not have legal personality and, therefore, cannot be considered passive subjects of legal-tax relations.
It is true that, if the presidential veto is overturned, the government may take the matter to the Supreme Federal Court (STF) alleging what it has already stated in the veto message – that there would be no constitutional authorization to grant financial or tax benefits to FIIs and Fiagros. Considering the political issue surrounding the matter, although we are confident that the veto will be overturned by the National Congress, it is difficult to predict how this latest chapter of the tax reform will end. Let’s wait and see.
By Júlia Vituli, lawyer at Candido Martins Advogados.