Foreign Digital Assets and the BRL 35,000 Exemption: Did Law No. 14,754/2023 Really End This Right?
- Clivanir Cassiano de Oliveira
- May 23
- 4 min read
In recent months, it has become common to hear a categorical statement in the tax field: that Law No. 14,754/2023 ended the income tax exemption for monthly sales of up to BRL 35,000 involving digital assets held abroad.
This conclusion is often presented as already settled. However, when the legislation is read carefully, the discussion appears to require more attention than many brief comments suggest. Furthermore, Law No. 14,754/2023 does not expressly provide for the repeal of the tax exemption right for monthly purchase and sale transactions of up to BRL 35,000 involving assets of the same nature.
What does Law No. 9,250/95 say?
Article 22, II, of Law No. 9,250/95 provides an income tax exemption on capital gains arising from the sale of low-value assets, considering the limit of BRL 35,000 per month.
For many years, the Brazilian Federal Revenue Service applied this logic to crypto-assets as well, treating them, for severhttp://no.Lawal purposes, as assets or rights.
In practice, this led many investors to understand that monthly sales below the legal limit could benefit from the exemption, provided that the legal requirements and proper gain calculation were observed.
This was the prevailing logic before Law No. 14,754/2023.
What did Law No. 14,754/2023 actually change?
Law No. 14,754/2023 created a new tax regime for certain foreign structures and investments. Among other matters, it began regulating:
foreign financial investments;
controlled entities (offshores);
trusts;
loss offsetting;
annual income assessment; and
the application of a 15% income tax rate.
There is no doubt that this law represented a significant change in the international taxation of Brazilian tax residents. The point of debate, however, lies elsewhere.
Did the new law expressly repeal the BRL 35,000 exemption?
The objective answer is: no. Law No. 14,754/2023 itself contains a provision listing the laws and rules expressly repealed. When reviewing this list, Article 22, II, of Law No. 9,250/95 does not appear among the expressly repealed provisions. This is important.
When lawmakers intend to eliminate a tax benefit, they usually do so clearly.
Here, that did not happen.
Could there have been an implied repeal?
This is precisely where the legal discussion begins.
Under the Brazilian Introductory Law to the Rules of Brazilian Law (LINDB), a later law may repeal a previous one in two ways:
when there is incompatibility between them; or
when the new law entirely regulates the subject matter previously governed.
This is known as implied repeal.
Art. 2 ... § 1 A lei posterior revoga a anterior quando expressamente o declare, quando seja com ela incompatível ou quando regule inteiramente a matéria de que tratava a lei anterior. § 2 A lei nova, que estabeleça disposições gerais ou especiais a par das já existentes, não revoga nem modifica a lei anterior.
Therefore, the question becomes:
Is Law No. 14,754/2023 incompatible with Article 22 of Law No. 9,250/95?
Or:
Did it begin to regulate the exact same subject matter in its entirety?
The answer does not appear to be so simple.
Do both laws regulate exactly the same subject?
This may be the central issue.
Article 22 of Law No. 9,250/95 deals with the sale of low-value assets. Law No. 14,754/2023, on the other hand, deals with the taxation of foreign financial investments and structures.
At first glance, there is similarity, but not necessarily identity. And this raises a legitimate legal question: is every crypto-asset necessarily a financial investment?
Crypto-assets are not a single category
Brazil’s own regulatory environment recognizes this.
The Brazilian Securities Commission recognizes a functional approach to crypto-assets, acknowledging that they may serve different purposes and receive different legal treatment.
There are:
payment tokens;
utility tokens;
asset-referenced tokens;
NFTs; and
structures that may or may not assume characteristics similar to securities.
In other words, “crypto-asset” is not a single and homogeneous legal category.
A collectible NFT, for example, does not always resemble the traditional concept of a financial investment. In some cases, it may be much closer to an individualized digital asset than to a classic financial investment.
This distinction matters.
Because if the asset is legally treated as a digital asset rather than a financial investment, coexistence between Article 22 of Law No. 9,250/95 and Law No. 14,754/2023 may perhaps be possible.
The debate remains open
This does not mean definitively stating that the BRL 35,000 exemption automatically remains applicable to every crypto-asset held abroad.
It would be premature to present this as an absolute truth. But it also seems premature to claim the opposite without addressing a fundamental question: where exactly did the law repeal this right?
So far:
there has been no express repeal of Article 22, II;
implied repeal depends on demonstrating incompatibility; and
the legal classification of digital assets still requires case-by-case analysis.
In tax matters, especially when dealing with tax benefits and later legislative changes, automatic interpretations usually deserve caution.
Conclusion
Law No. 14,754/2023 significantly changed the taxation of foreign investments.
That is indisputable. What may still deserve more careful reflection is another statement that has begun circulating almost as a consensus: that the BRL 35,000 exemption simply disappeared for crypto-assets or digital assets held abroad.
The legislation, at least on an initial technical reading, does not appear to provide such a simple answer.
And for this very reason, the subject deserves individualized study, analysis of the type of asset involved, and careful attention to the legal classification adopted in each case.
Because in international taxation, very often, the legal detail makes all the difference.
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