The Brazilian Federal Revenue Service (Receita Federal) has issued COSIT Ruling No. 96/2026, addressing the application of Individual Income Tax (IRPF) to transactions involving the sale of equity interests in which the purchase price consists of a fixed portion and a variable portion, subject to the occurrence of future events.
The ruling is particularly relevant to M&A transactions involving contingent payment clauses (earn-out provisions), which are common in mergers and acquisitions.
According to the Brazilian Federal Revenue Service, amounts received subsequently as a result of the fulfillment of a condition precedent form part of the purchase price of the equity interest. However, such amounts are taxed only when they are effectively received, each payment constituting a new taxable event for capital gains tax purposes.
The receipt of additional purchase price installments resulting from the fulfillment of a condition precedent constitutes a new taxable event for purposes of income tax on capital gains and is subject to the progressive tax rates set forth in Article 21 of Law No. 8,981, of January 20, 1995, as amended by Law No. 13,259, of March 16, 2016, for taxable events occurring on or after January 1, 2017.
In practical terms, this means that:
- the initial amount received will be taxed upon receipt, based on the capital gain realized at that time;
- additional payments resulting from the fulfillment of the conditions established in the agreement will be taxed only when they are effectively received;
- each future payment constitutes a new taxable event and is therefore subject to the legislation in force on the date of its receipt; and
- if the acquisition cost of the equity interest has already been fully utilized in calculating the capital gain on the initial payment, any additional amounts received in the future will be fully taxed as capital gains.
Another relevant aspect is that installments received on or after January 1, 2017, are subject to the progressive capital gains tax rates (15% to 22.5%), which may result in taxation different from that applied to the amount originally received in the transaction.
The Brazilian Federal Revenue Service's ruling demonstrates that the taxation of these transactions should not be analyzed solely at the time the purchase and sale agreement is executed. The way the purchase price is structured, the conditions established for future payments, and the allocation of the acquisition cost may produce significant tax consequences over the years.