Source: Valor Econômico, 14/07/2009

What changes in the reality of companies with the more digital Brazilian judiciary and tax authorities? And what should companies do to meet this new reality, increasingly electronic and with less paper and bureaucracy? Are they prepared for this real-time communication with the authorities? Or is it that attachment to paper is such that we feel insecure without it? What investment is required to meet the standards already in force that require electronic accounting and financial management, as well as legal management? Could this be a deterrent for small businesses?

One of the first requirements we observed is the requirement to use a digital certificate based on ICP-Brasil - which, in principle, for all its characteristic of increasing legal shielding, non-repudiation and reversal of the burden of proof, should have been there for long time have been massively adopted by companies. This has not yet occurred, perhaps because it is not mandatory for everything. The digital certificate, however, is an option to obtain more information on the website of the Federal Revenue of Brazil, avoiding the need to go to one of its units and facilitating the withdrawal of certificates, reasons that have already caused a high index adherence to the system of accountants and financial departments.

The lack of a culture of using digital certification still leads to its little acceptance in general. Imagine the challenge of a small business or retailer, or even a banking correspondent, given the requirement for a digital certificate. At most, banks are able to require the use of a token. But if digital certification were to become mandatory by law, everyone would use it. And perhaps this will happen in the coming years, in view of all the virtualization of relations with authorities - with the “e-Gov”, which also includes encouraging the use of electronic trading, among others.

Another relevant issue in terms of technical requirements for a company to operate online with public institutions is the use of a tax solution system integrated with an ERP. With the exception of large companies, many do not have this type of structure yet well implemented, which can determine the occurrence of a series of incidents, including externalization of data that are misleading to the tax authorities, due to the requirements of the Public Digital Bookkeeping System (Sped ) currently in progress, which includes the Electronic Invoice.

Started on January 22, 2007, Sped was implemented by Decree No. 6.022 as part of the federal government's Growth Acceleration Program (PAC) to establish measures to improve the tax system and remove bureaucratic obstacles to economic growth. There are three elements that comprise it: the Digital Accounting Bookkeeping (ECD), instituted by Normative Instruction No. 787, of 2007, of the Federal Revenue of Brazil, which provides for the sending of accounting information (reason, daily balance sheets, balance sheets, entry forms and auxiliaries and others) by digital means, aiming at the replacement of physical books and their eventual extinction; the Digital Tax Bookkeeping (EFD), a digital file with information related to the taxpayer's operations, services and tax calculation, containing the tax books for the registration of entries, the registration of exits, the registration of inventory, the registration of IPI and ICMS calculation record; and the Electronic Invoice (NF-e), which has been a reality in Brazil since the SINIEF Adjustment nº 7, 2005, and today regulated by the Cotepe Act nº 14 and the ICMS Protocol nº 10, both of 2007.

Law 11.419, of 2006, on the other hand, is the regulatory framework for judicial computerization, since it covers all phases and activities for the implementation of the computerized judicial process throughout the country, in all degrees and organs of the Judiciary in Brazil, adopting as principle the validity of any and all procedural acts performed electronically. Article 11 of the legislation establishes that "documents produced electronically and joined to electronic processes with guarantee of origin and its signatory, in the form established in this law, will be considered original for all legal purposes". Even within the scope of public administration, we already have the digitalization of the process of the Federal Court of Accounts (TCU), initiated by Ordinance No. 189, of 2007, which approves the realization of the project electronic administrative process - “Segedam Sem Papel” - and designates your manager.

Are we prepared for this? Or are we going to insist on printing e-mails to keep on paper files and then having to scan to join an electronic court case? It would be better to archive all these documents directly electronically, but for that we need a good solution for electronic document management (GED) and email archiving to not only save them, but be able to find them.

We are on the way to a paperless society, but not without documents, as already provided by the Brazilian Civil Procedure Code. The digital society is much better documented, with more controls and more transparency. We just need to break the cultural paradigm and update our uses and customs to meet all this new business and governmental reality. These standards are already in place, but it is necessary to know if companies are prepared, in accordance with the new rules. Deadlines are already running!

Patricia Peck Pinheiro is a lawyer specializing in digital law, founding partner of the firm Patricia Peck Pinheiro Advogados and author of the book “Direito Digital” and the audio book “Everything you need to hear about Digital Law” by Editora Saraiva

This article reflects the views of the author, and not of Valor Econômico newspaper. The newspaper is not responsible and cannot be held responsible for the above information or for losses of any kind due to the use of this information.