on September 22, 2015, provisional measure was published No. 692/2015, whose objective is to alter the aliquot of incident tax on capital gain due to the alienation of goods and rights of any nature, Whether by individuals, whether by legal persons.

Article 1 of said provisional measure amended Article 21 of Law 8,981 / 1995, which deals with capital gain earned by individual. In this way, the rate of income tax, which was previously fixed at 15% on capital gain, now focuses on 15% on the portion of the gains not to exceed R $ 1,000,000.00; 20% on the portion of the gains that exceed R $ 1,000,000.00 and do not exceed R $ 5,000,000.00; 25% on the portion of the gains that exceed R $ 5,000,000.00 and do not exceed R $ 20,000,000.00; and, 30% on the portion of the gains that exceed R $ 20,000,000.00.

with the amendment, paragraph 3 of article 21 determines that if alienation in parts of the same good or law occurs, from the second operation, capital gain should be summed to earnings earned in previous operations for , deducting the amount of tax paid in previous operations. Consequently, Paragraph 4 clarifies that the set of shares or quotas of the same legal entity will integrate the same good or right.

Such a device aims to prevent taxpayers from performing disposals of goods and rights in stages, in order to reduce the capital gain for the purpose of maintaining the incidence of minor aliquots, according to the above-mentioned incidence margin.

For example: 100 shares of a particular company are worth R $ 2,000,000.00. Thus, rather than alienating at once the 100 shares and framed in the incidence range of income tax of 20%, the taxpayer could carry out such operation in parts, framing in lower percentages. By opting for two alienations followed by 50 shares for one million, the taxpayer could be in the 15% range in both operations.

However, with the amendment operated by the provisional measure No. 692/2015, it will be due to income tax on the first sale of R $ 150,000,000 (R $ 1,000,000.00 x 15%) and relation to the second alienation, the total amount should be determined, considering the sum of the two operations (R $ 2,000,000.00 x 20% = R $ 400,000.00), being discounted the amount previously paid (R $ 400,000.00 - R $ 150,000.00 = R $ 250.000,00).

On the other hand, Article 2 of the provisional measure in question deals with the capital gain of legal entity due to the alienation of goods and rights of non-current assets, subject to the incidence of income tax in accordance with aliquots referred to in Article 21 of Law 8,981 / 95 and §§ 1, 3 and 4 of that Article, except for legal persons taxed by real, presumed or arbitrated profit.

The new rule will be worth as of January 1, 2016, provided that the provisional measure is converted by law until December 31, 2015. However, if the conversion occurs after January 1, 2016 the new rule will be Applied only from January 1, 2017.