New legislation facilitates the negotiation of debts with the National Treasury

Companies in financial crisis may use tax losses to settle debts with the tax authorities

 

Taxpayers and the National Treasury will have more chances of reaching agreements through tax transactions. Published yesterday, Law No. 14.375 extends discounts and payment terms. It also allows the negotiation of all debts discussed in the administrative sphere - today there are restrictions regarding debts with the IRS.

 

Last year, based on the old rules, the public coffers received R$31.7 billion - 29% more than the previous year.

 

The transaction was instituted in February 2020, through Law 13,988. The measure was a milestone because the National Tax Code provided for the transaction, but lacked regulation by law. Since then, the Tax Authorities are allowed to sit at the table and negotiate with debtors, no matter the value of the debt.

 

Under the previous law, the limit for discounts was 50% on interest and fines. The ceiling is now 65%. The limit for the installment plan was also extended, from 84 months to 120 months. It is also possible for the transaction to be opened at the taxpayer's own request.

 

The tax losses and the negative calculation basis of the CSLL can be used to settle tax debts up to the limit of 70% of the remaining value, after the discounts have been applied. Although the use must be authorized by the IRS or PGFN, tax experts welcome this opportunity.

 

A writ of payment or credit right with a final and unappealable judgment - even if the writ of payment has not yet been issued - can also be used to amortize the main tax debt, fine and interest. Tax specialist André Oliveira, partner at C. B. Advogados, projects that the taxpayer could request the review of non-individual transactions already entered into to provide for the use of precatórios under the new law.

 

What was left out of the new law, after the sanction, is the possibility of the discount on the principal debt. Even so, the advance was relevant, according to attorney Priscila Faricelli, partner at D. Advogados. "Law 13,988 had come very timidly because there was a lot of resistance to the institute," says the tax specialist.

 

Some taxpayers were waiting for the so-called "Covid Refis", which would be a special installment plan for tax debts. Priscila points out that, unlike Refis, in the transaction an analysis of the recoverability of the taxpayer's credit is made. For her, there will be a monitoring of the attorney general's office that will bar, at the moment of the agreement, the taxpayer who is likely to avoid paying taxes to constantly try to take advantage of the benefits.

 

For the lawyer, the transaction has allowed the construction of a dialogue channel between the tax authorities and taxpayers that had been expected for years. For this reason, she considers the changes relevant, even though the discount on the principal debt was vetoed when the legislation was enacted.

 

Until the new rule, only part of the debts not recorded as active debt could be negotiated with the Attorney General of the National Treasury (PGFN). These were those considered to be of small value or those discussed through tax litigation theses. Only two theses were open to settlement: profit sharing programs (PLR) and goodwill. Now, unregistered debts may be negotiated in a broader manner.

 

The law also clarifies that discounts granted in the collection of federal and municipal credits will not be taxed by Income Tax, CSLL, PIS and Cofins. "These are specific changes that perfect the transaction," according to Fábio Calcini, partner at law firm B. S. M. Advocacia. The lawyer also highlights the use of tax losses by companies in financial crisis.

 

The most benefited sectors will be companies in receivership or about to enter receivership, because they have low rating and more discount, besides, probably, accumulated loss, according to Matheus Bueno, partner at B. T. Lawyers. "Any taxpayer who has accumulated liabilities in the pandemic and is still in Carf [Administrative Council of Tax Appeals] may have an advantage," he says.

 

The rule may lead PGFN and the IRS to modify the notice that opened the transaction for judicial and administrative discussions on goodwill, according to Julio Janolio, partner at V. R. Advogados. "In practice, there will be loss of interest by taxpayers, since the benefits brought in the law are better than those provided in the goodwill notice currently in force," he said.

 

 

 

 

 

 

Adaptation of the article published by Valor Econômico.