CVM Resolution 175, the tax treatment of FII and FIP vehicles and the legal criteria for choosing the investment structure.
Structuring investments through funds has required, since CVM Resolution 175/2022, an integrated reading of the securities regulator’s rules and the civil law regime of arts. 1,368-C and following of the Civil Code, introduced by Law 13,874/2019. That framework consolidated the general rules on funds, allowed classes of quotas with segregated assets and limited quotaholder liability to the amount subscribed, besides providing a specific insolvency regime for funds. Since then, Law 14,754/2023, Constitutional Amendment 132/2023 and Law 15,270/2025 have materially changed the tax design of these vehicles, and the conditions for tax benefits are no longer those of the original wording of the governing statutes.
The FII remains governed by Law 8,668/1993, which creates the administrator’s fiduciary ownership over the assets and segregates them from its own estate. Art. 10, sole paragraph, requires semiannual distribution of at least ninety-five per cent of profits determined on a cash basis, which defines the income profile of the vehicle. On the regulatory side, CVM Instruction 472/2008 was revoked and the matter moved to Normative Annex III of CVM Resolution 175, introduced by CVM Resolution 184/2023, with effects on by-laws, governance and the duties of administrator and manager.
The income tax exemption on distributed income remains in art. 3, III, of Law 11,033/2004, but its requirements were tightened. As amended by Law 14,754/2023, the benefit requires quotas admitted to trading exclusively on an exchange or organized over-the-counter market, a fund with at least one hundred quotaholders, no longer fifty, and an individual quotaholder who neither holds ten per cent or more of the quotas nor receives ten per cent or more of the income distributed. The same regime applies to Fiagro.
The statute set adaptation periods of one hundred and eighty days for funds created after it came into force and until June 30, 2024 for those already existing on December 31, 2023. The point demands continuous attention, because losing any requirement later, including through concentration of the quotaholder base after buybacks or inheritances, removes the exemption for all individual investors, not only for the one who exceeded the limit.
Law 15,270/2025 introduced a minimum tax on high-income individuals, reaching annual income above six hundred thousand reais, with a rate rising to ten per cent from one million two hundred thousand reais, and whose base as a rule includes exempt income and income subject to exclusive taxation. Income distributed by real estate investment funds and by Fiagro was expressly excluded from that base, alongside LCI, LCA, CRI and CRA. The exemption of art. 3 of Law 11,033/2004 therefore remains economically effective even for high-income investors, preserving the attractiveness of the vehicle under the current framework.
Supplementary Law 214/2025, as amended by Supplementary Law 227/2026, set aside the general non-incidence rule applicable to funds in the case of FII and Fiagro. Non-incidence now depends on quotas admitted to trading on an exchange or organized over-the-counter market, at least one hundred quotaholders and the absence of any individual quotaholder holding, alone or together with related persons, twenty per cent or more of the quotas. There is also an irrevocable election for the regular regime, which may suit funds whose tenants are taxpayers able to take credits. We addressed the subject in a dedicated article, Brazilian real estate funds and Fiagro before the IBS and the CBS.
The convergence, and the difference, between the two regimes deserves note. Both require one hundred quotaholders and trading on an organized market, but the concentration limit is ten per cent for the income tax exemption and twenty per cent for IBS and CBS non-incidence. Monitoring the quotaholder base has become, in practice, a continuing obligation of administrators and managers.
The FIP is the proper vehicle for control or influence positions in companies, with effective participation in defining strategic policy and in the management of portfolio companies, today governed by Normative Annex IV of CVM Resolution 175. Law 11,312/2006 provides a zero income tax rate on income earned by non-resident quotaholders, subject to statutory conditions, among them the exclusion of beneficiaries domiciled in favorable tax jurisdictions and limits on participation in the fund.
Law 14,754/2023, in introducing periodic taxation of closed-end funds, preserved a different treatment for FIPs qualifying as investment entities, which remain taxed only on distribution, amortization or sale of quotas. Qualification requires a professional and discretionary management structure, a condition that must be observed from inception and evidenced throughout the life of the fund. A FIP that does not qualify as an investment entity is subject to periodic taxation, which materially changes the projected cash flow of the structure.
Choosing between an FII and a FIP is not primarily a tax decision but a legal one. It follows from the nature of the asset, the degree of intended involvement in the business, the investor profile and the distribution policy. What has changed is how demanding it is to maintain qualification. After Law 14,754/2023 and the consumption tax reform, benefits ceased to be stable attributes of the vehicle and now depend on requirements verifiable in each period, so that initial structuring and continuing management of the quotaholder base are today part of the same work.
This article is for general information only and does not constitute legal advice. For guidance on specific situations, please contact our team at contato@gotlibrocha.com.br.
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