Judiciary authorizes companies to use IR credits in the first half

The Judiciary has allowed companies with income tax credits (IRPJ), for having collected more than in fact owed over the past year, to use the amounts for the payment of new taxes already in this first semester. These decisions contradict the Federal Revenue’s understanding. The bank, in December 2017, issued a standard that conditions the requests for compensation to a tax return whose delivery usually occurs in the month of July.

There is at least one sentence and two injunctions, in Rio de Janeiro and in São Paulo, favorable to taxpayers. Decisions are important because, according to experts, most of those with the so-called “negative balance” had already planned to pay taxes early in the year through compensation when Normative Instruction (IN) 1,765, which addresses the issue, was published . And if they followed the new rule, they would have to take cash out of the box.

It is possible that companies have a negative Income Tax balance if, during 2017, they opted for the collection by estimate (based on a profit forecast, month by month). At the end of the year, when they made the settlement, they reported that they paid more to the Union than they owed. This difference in values ​​is what can be used in the following year to remove federal taxes. Among them the IRPJ itself and also CSLL and PIS and Cofins.

“Businesses are coming out of the crisis. Putting another seven months of cost of capital in the midst of this low-box environment, as predicted by IN, is very complicated, “says lawyer Luca Salvoni, from the Cascione, Pulino, Boulos & Santos office.

Before the IRS published the rule, taxpayers could make the compensation in the month following the final balance sheet – regardless of whether or not they filed the return. And this is what is being guaranteed in court.

The first sentence that has been heard was delivered by the 1st Federal Court of São Bernardo do Campo and benefits a company in the automobile sector (case number 5000448-24.2018.4.03.6114). In the decision, the judge in the case emphasizes that the measure “creates obstacles to the right to tax compensation”.

He also draws attention to the fact that “the legal regulation of tax compensation takes place according to Law No. 9,430 of 1996”. Article 70 states that it may be done in the period subsequent to the determination.

Revenue has been responding in the processes that the Fiscal Accounting Bookkeeping (ECF) – the statement that must be filled as a condition for the compensation claims – has been available to taxpayers since the beginning of the year and that the deadline is July.

Lawyers for the company benefiting from the court ruling, Marcelo Annunziata and Romulo Coutinho, from the Demarest Advogados office, say, however, that it is rare for companies to be able to file the return before July. This is due to the complexity of the document. The ECF handbook, they say, is about 500 pages long.

In addition, among the information that must be declared is the balance sheet of the company, which by the Civil Code has until the month of April to be approved by the shareholders. “It’s practically impossible to speed up the whole process. It should also be taken into account that the lack or error of information in the declaration entails heavy fines to taxpayers, “says Annunziata.

There are injunctions also in favor of taxpayers in the 24th Federal Civil Court of São Paulo and in the 28th Federal Court of Rio de Janeiro. The capital of São Paulo was given to a telephone company (case # 50003387-19.2018, 4.03.6100), while Rio’s favored an energy company (# 0007540-03.2018.4.02.5101).

Taxpayer Leo Lopes, of W Faria Advogados, understands that there are two types of illegality in IN published in December by the Revenue: a general and a specific one. First, because the federal agency would be imposing on taxpayers an obligation that has no provision in law and then because, even if it were valid, there would be a violation of the principle of non-surprise.

“Many companies that collected the tax estimate last year did so because they knew that at the beginning of the year they could use that accumulated credit. The news about the change of the rule was given after they had paid that way practically all year, “emphasizes Leo Lopes.

Among the taxpayers IN has been seen as an instrument whose sole purpose is to feed the government coffers. By the time it published the standard, Revenue reported that compensation applications totaled more than R $ 70 billion in 2017.

For Luca Salvoni and Rafael Vega, from the office of the office Cascione, Pulino, Boulos & Santos, there is no technical argument to justify the measure. “Revenue does not see if the balance is good or bad at the time the taxpayer delivers the statement. This is done afterwards, usually near decay, which is five years. So there is no reason to require this document as a requirement for compensation. It does not change anything, “says Vega.

The IRS was searched for Value, but did not return until the closing of the issue. The Attorney General of the National Treasury informed, through his press office, that he would not speak on the matter.

Source: Valor Econômico

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Graduado pela Pontifícia Universidade Católica de São Paulo (“PUC-SP”), Corradi possui MBA em Gestão Tributária pela FIPECAFI e Pós-Graduação em Direito Tributário pelo Instituto Brasileiro de Estudos Tributários – IBET.

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Graduado pela Pontifícia Universidade Católica de São Paulo (“PUC-SP”) e LLM em Direito Tributário pelo INSPER, Rubens é fundador do Grupo de Estudos da Reforma Tributária (“GERT”) e especialista em Contencioso e Consultivo Tributário.

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Mestre em Direito Norte-Americano (LL.M.) com ênfase em International Business
Transactions pela University of Missouri-Kansas City (UMKC) School of Law, Hítalo também é Mestre em Fashion Law pela Universidade Presbiteriana Mackenzie e especialista em sistemas jurídicos contemporâneos pela Universidad Complutense de Madrid – UCM.

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