Source: Brazilian News Agency - 02/08/2010

Delayed effect tax bomb: Without electronic invoice, companies will receive heavy fines and will no longer compensate for credit

SÃO PAULO [ABN NEWS] - The lack of issuance of the Electronic Invoice (NF-e), which is already mandatory for several sectors of the economy, is creating two unusual and at the same time serious facts, both for those who are still working with notes taxes on model 1 or 1 / A paper - and should issue the NF-e - as for those who accept to receive them together with the respective goods purchased.

The first risk faced, for those who sell, is the payment of a heavy fine on the value of the merchandise sold, according to the legislation of each State. At the same time, retailers - who buy - are deprived of using credits from the ICMS - Tax on the Circulation of Goods and Services.

“The problem is a real tax bomb with a delayed effect, since 254,8 thousand companies managed to adapt until 22 July. A month earlier, that number was only 197. In view of the tax authorities' estimate that about 1 million legal entities will be authorized to issue the document, it is likely that this figure will be far from being reached in 2010 ”, argues Professor Roberto Dias Duarte, director of Mastermaq and academic coordinator of ENC - School of Business Accounting, São Paulo (SP).

2006 data from the IBGE show that there are 567 thousand manufacturing industries in Brazil and 213 thousand wholesale establishments. In these two segments alone, there are almost 800 thousand companies, which makes the predictions about the universe to cover NF-e perfectly coherent.

“The bad news is that in October 2009, we had 100 thousand companies suited to this requirement, and until July 22, only 154,8 thousand had entered. How will almost 800 more do the same by the end of this year? The account does not close, ”says Roberto Dias Duarte.

According to the expert, as many companies have already missed the deadline, it is advisable to start a spontaneous complaint process, as this way, at least, a reduction in the fine is obtained. "For this, it is necessary to consult the legislation in force in the State where the company is located, as there are important differences, such as the percentage of the fine applied," says the specialist.

Before anything, and in order to demonstrate zeal and good intent in a public case, the company must prove the entry and calculation of taxes in the respective tax books, in addition to the effectiveness of the payment of taxes due. Finally, the taxpayer will need to formalize the questioning and the probable spontaneous complaint.

In the State of São Paulo, for example, the ICMS Regulation (RICMS), in its article 59, emphasizes that “the tax is non-cumulative, offsetting what is due in each operation or installment with what was previously charged for this or another State, in relation to the incoming goods or service provision received, accompanied by a suitable tax document, issued by a taxpayer in good standing with the tax authorities (Law 6.374 / 89, art. 36, with amendment to Law 9.359 / 96). ”

“In other words, as there will not be the presence of a 'skilled document' - read NF-e - it will not be possible to offset ICMS credits by the retailer, since the goods purchased from the manufacturer will not be sold with the issue of the Electronic Invoice ”, emphasizes professor Roberto Dias Duarte.

In short, the consignee may be penalized for transporting / receiving merchandise unaccompanied by a tax document and still suffer the disallowance (rejection) of the NF model 1 / 1A that he or she records.

According to the director of Mastermaq Softwares, the general understanding of the various tax authorities is that, a priori, the company was unlawful, thus being subject to the sanctions provided for in the tax legislation of its State.

The big question is: What is the reason for not meeting the schedule?

“In my travels around the country, I discovered that companies are not issuing NF-e because: (1) Many do not know that they are obliged; (2) Some know and pretend they don't know; and (3) So many others, you know, pretend they don't know and are angry with those who know. It is clear that there is a lack of disclosure about benefits and threats. Entrepreneurs have no idea of ​​the size of the tax liability they are generating. ”, He concludes.