Author: Juliano Basile

Source: Valor Econômico - SP - 16/11/2009

Juliano Basile, from De Brasília

Companies are seeking Justice to ensure that, when they join the new installment payment of federal debts - the so-called “Refis da Crisis” -, they are entitled to the Negative Debt Certificate (CND), which allows them to participate in bids and obtain financing from public banks . The issuance of the document can be denied by the Federal Revenue Service if the taxpayer is considered a regular debtor or if he continues to have outstanding debts.

This practice was identified by the Attorney General's Office of the National Treasury (PGFN), which already counts hundreds of injunctions obtained by companies in sensitive sectors for collection - hospital, drinks, tobacco and fuel. They are taxpayers considered permanent debtors by the Revenue who, through injunctions obtained under the argument that they need to join Refis, obtain benefits that would only be granted to those who are up to date with the payment of taxes.

There are cases of companies that have tax debts of R $ 500 million and are obtaining decisions that allow them to withdraw the CND. A company with a debt of R $ 512 million and 27 collections on the Federal Government's active debt obtained an injunction at the 24th Federal Court of São Paulo to join Refis and, with that, obtain a negative certificate. This practice has been widespread because not all companies that adhere to Refis obtain the document automatically. Only those who do not have outstanding debts get the certificate.

The Treasury Attorney's Office believes that this problem should clog higher courts in the future. "We still do not have an exact notion of how many injunctions were granted, but we know that there are many injunctions and that they must go up to the higher courts of Brasília," said Claudio Xavier Seefelder, of the General Coordination of Judicial Representation of PGFN.

The problem is also of concern to the Federal Police, since obtaining the CND allows businessmen detained for tax evasion and embezzlement to escape from jail. Claudio Gomes, from the Fazendária Police Station, said that there are cases of businessmen who sought to join Refis 4 just to avoid prosecution. He acknowledged that there are companies that go into installments regularly, but he regretted that the Refis standard (Law No. 11.941) opened the door for other companies to seek criminal protection. "The rules are made for everyone, but unfortunately, some benefit from the gaps," said Gomes.

The scheme used by companies to circumvent the tax system through Refis also worries the Federal Public Ministry and was taken to the 2nd Criminal Chamber, which deals with tax crimes. Prosecutors are considering adopting some measures against the practice.

In the private sector, the matter was the subject of meetings of the Brazilian Institute of Ethics in Competition (Etco), which appointed lawyers to try to stop these injunctions in the first instance of Justice. "The problem is more serious in sectors with higher taxation, such as beverages and cigarettes," said Ana Tereza Basílio, Etco's lawyer. "In them, obtaining these injunctions causes greater imbalance, since those who regularly pay their taxes end up being penalized."

Another problem with the new Refis is that the tax authorities only require the payment of a minimum installment to leave the company, without open debts, up to date with the Revenue. As the program allows installments in up to 180 months (15 years), some companies obtain CND with the payment of only R $ 100,00. According to tax attorney Oséas Aguiar, from the Martinelli Advogados law firm, the minimum installment amounts to a maximum of R $ 4,4. There are two quotas of R $ 2 thousand for IPI debts with the Revenue and another four quotas of R $ 100 for PGFN, related to general tax and social security debts. "In most cases, companies are joining Refis because they want to pay their debts and are in good faith," said Aguiar. “But, unfortunately, the system allows companies in bad faith to join. In this case, the company pays a small amount and obtains the CND, even if it owes R $ 1 billion to the tax authorities ”, laments the tax attorney.