Author: Rubens Branco

Source: Jornal do Brasil, 22/06/2009

Last week when the world press gave a huge repercussion to a small fly that bothered American President Barack Obama during an interview, Normative Instruction RFB nº 949, of 16/06/2009, which regulates the Transitional Tax Regime ( known as RTT) and which instituted yet another bureaucratic control to be carried out by companies in Brazil (called Transitional Accounting Tax Control or FCONT), but it did not have the same repercussion, at least in the Brazilian press.

Apparently the American president slapped the helpless fly and liquidated with a single blow the flight of this helpless insect generated more interest than the creation of yet another accessory obligation created by the state bureaucracy to facilitate the work of the IRS and make it even more expensive. control costs for fulfilling tax obligations here in Brazil.

For this and other reasons, it becomes more and more expensive and bureaucratic to comply with tax obligations, since people apparently do not bother or are not aware of it.

In any case, companies will have to present FCONT in digital media until midnight on November 24, 30 through an application to be made available by the IRS on October 2009, 15.

I emphasize that, for this, the digital signature will be mandatory using a valid digital certificate. The FCONT must be completed by legal entities subject to the Transition Tax Regime (RTT).

Instruction 949, however, forgot (or preferred) not to expressly define which companies are bound by the RTT, but it does define that companies that have to adapt their accounts by the changes introduced by Law 11.638 / 2007 and by articles 37 and 38 of Law 11.941 / 2009, which changed the criteria for recognizing revenues, costs or expenses computed in the bookkeeping, for the calculation of the net profit for the year, will not have tax effects for purposes of calculating the real profit and the basis for calculating the Social Contribution on Profit Net, and the accounting methods and criteria in effect on December 31, 2007 should be considered for tax purposes.

To this end, legal entities must calculate their results based on the two criteria (the one in force on December 31, 2007 and those introduced by Laws 11.638 / 2007 and 11.941 / 2009), to determine the difference between the criteria and adjust exclusively in the Book of Calculation of Real Profit (Lalur) the result calculated in accordance with the previous legislation due to the difference between this criterion and the new one.

INRFB 949 further determines that both investment subsidies (tax incentives) and donations made by the government, as well as the premium on the issuance of debentures, must be excluded at Lalur, and must be kept in a Profit Reserve and added to Lalur when used in the case of capitalization and subsequent return of capital to the partners, or when integrating the basis for calculating mandatory dividends.

Since there was a capital reduction in the five years prior to the creation of the premium in the issuance of debentures, the capitalization will also give rise to its inclusion in Lalur, being prohibited the registration in Capital Reserve accounts.

It is important to mention that, although the RTT also applies to companies taxed based on the presumed profit, the obligation to carry out the FCONT does not apply, which will only be required from those companies that are subject to taxable income and RTT.

Companies taxed on the basis of presumed profit may make adjustments to earned income, the taxation of which may be deferred for subsequent periods, due to differences in accounting methods and criteria determined by corporate law, in relation to those applicable to tax law. However, they must maintain a calculation memory that allows identifying the revenue earned in each period and controlling the amounts of exclusions and additions to the calculation base.
 

Rubens Branco, Lawyer