Source: Valor Econômico, 26/02/2009

With a history of victories in billionaire tax disputes in the higher courts in recent years, the Attorney General's Office of the National Treasury (PGFN) accumulates defeats when it comes to the collection of these credits. Excessive bureaucracy, in addition to generating recurring complaints from both companies and the judiciary, does not guarantee collection: the Union's active debt is R $ 643 billion, but the attorney general estimates that each year it will recover only R $ 3 billion - or 0,48% of the total. At the end of last year, a package of four draft laws, still in the Civil House of the Presidency of the Republic, and a provisional measure - MP 449, pending in the National Congress - were presented in an attempt to change this situation. A second step will be an administrative change: the installation of a department created exclusively to reform the collection of active debt.

The Federal Active Debt Management Department was formally created on February 10 by the Attorney General of the National Treasury, Luis Inácio Adams, and will be commanded by the former assistant secretary of the Federal Revenue of Brazil, Paulo Ricardo Cardoso. The idea, according to Adams, is to streamline the exchange of information between the IRS and the attorney general's office and introduce some collection principles inspired by the financial sector in the federal government. One of these principles is the creation of an active debt rating and, based on it, specific forms of collection for different types of debtors - such as taxpayer protest and outsourcing of collection to the banks themselves. The first package of outsourced credits - or “bankers” - was signed at the end of last week. The experiment was carried out with a group of 53 thousand Union debtors whose names were taken to the collection department of Banco do Brasil - the package included “bad” rural credit debts of the bank itself assumed by the Union in 2002, totaling about R $ 5 billion. From now on, PGFN debts of less than R $ 10 should be regularly collected from federal banks. "The financial system today is the one that is most efficient in collecting credits, as it is the one who works with it the most," says the attorney general. In an exclusive interview with Valor, Adams tells how the new active debt management of the Union will work.

Valor: What is the central idea of ​​the new National Treasury's Active Debt Management Department?

Luis Inácio Adams: I took over the attorney general's office with the idea of ​​promoting a form of integration of the tax administration as a whole, whether in the Revenue or in the attorney's office. The common model did not facilitate the communication of organizations in the tax process.

Valor: And did that create problems?

Adams: Yes. Until 2003, for example, the IRS understood that fiscal secrecy reached the attorney general's office. This is nonsense, because the attorney's office needs to collect the tax credit executive, but did not have this information, could not have access to the income tax declaration or taxpayer tax status. It is a model that comes from a culture of the past and had to be replaced. Now we are going to work with the idea of ​​the macro tax process, which is the concept of thinking the whole process. There will be several actions. One of them, which has been in progress since past management, is the implementation of the so-called “CF DAU”, an executive collection module within the IRS computer system. With it, the role of the attorney general's office is within the Revenue system. We have an integration process here, there is a database just to share the information. This is because each actor has his time to interact in the system: the tax credit is born in the Revenue and at a certain moment arrives in the attorney's office. We now have the visibility of the entire process.

Valor: But how useful is it for the prosecutor to know, during the execution, how the tax assessment took place?

Adams: To be able to analyze the quality of the tax credit. For example, to find out if it is prescribed or not, it is necessary to consult when the credit has expired, if there was a case of interruption of the prescription during the course of the tax process. Until now, this was only known if the taxpayer informed, and then it was necessary to send this information to the IRS to check and await its communication. Notice the bureaucracy of the process, harmful to the organization, because it burdens the Revenue, the attorney general and the Judiciary, in addition to harming the company, because while the whole cycle is not resolved, it does not obtain a negative debt certificate (CND). It is also useful from the point of view of agility in the information, as in the search of assets for attachment, of information on the taxpayer's patrimony, giving effectiveness to the execution.

Valor: With this information, what changes in execution?

Adams: In the execution process that we are proposing, there is, for example, the admission of what is called the exception of administrative pre-execution, that is, when a case is opened, the taxpayer will be able to petition the prosecutor something like “this credit cannot be executed because it has already been paid, I had the compensation accepted, I have a cause for suspension, so I request that it is not in the executive phase ”. The attorney-in-fact, through the new system, will be able to have access to the information to know if there was in fact a payment record, for example, and make the decision to either give the taxpayer a reason and cancel the credit or suspend its collection and, consequently, remove you from the executive universe. It is the moment of withdrawing the so-called “bad credit”. For that, access to the system is essential. Today obtaining this information is bureaucratic, you need a memorandum from the IRS.

Valor: What is the expected term for the implementation of this system?

Adams: The system will go into production in the second half and will be in effect until 2010. It will be a process of migrating the active debt that is already registered for this new system. The Active Debt Management Department was conceived fundamentally as another moment in this integration process. It means that active debt is not only treated from a legal point of view, because in the modeling we had of organization, the conduct of this process was always in the legal sphere, while active debt is a management problem. This is the new vision, which is not just about the legal element, but takes into account issues such as payment, installments, guarantees. I had the audacity to bring a tax auditor to lead this department (read more on page E2).

Valor: Does the new department already have its first goals?

Adams: The first goals are the CF DAU, the regulation of proper procedures for the executive collection of active debt and the unification of taxpayer assistance. An ordinance has already been published authorizing the hiring of two thousand civil servants, and the competition's emphasis is on unified service. With the unification of assistance, the taxpayer does not have to be “taking a pass” - pass here, pass there - to solve your tax problem.

Valor: Is the new department's main objective to increase the collection of active debt?

Adams: Also. The first objective of management is to qualify credit, to eliminate once and for all the general perception that credit is not collected, which is very complex. The fact that I recognize the five-year prescription does not mean that credits overdue for more than five years will not be charged. We may have cases of interruption of prescription and there are several elements of interruption that make it possible to have credits that are more than five years old and that are valid for execution, as an administrative appeal of the taxpayer, installment payments, any unequivocal act of the taxpayer recognizing the debt. We worked with Banco do Brasil and Caixa Econômica Federal to assess the quality of credit collection. It is a judgment of convenience, seeing what is collectible, having a perception of the efficiency of collection. With this dynamic, a management system is established to identify the cost-benefit ratio of the collection of active debt. How much does it cost to charge a credit, does it make sense to keep it? Sometimes it is not interesting to maintain this cost for society.

Valor: What is the advantage of partnering with banks?

Adams: The financial system today is the most efficient in the collection of credits, because it is the one who works with it most. This efficiency stems from a model that assesses credit quality, from the point of view of time, guarantee, debtor's situation and credit size. There are several elements that are even parameterized by the Central Bank for the bank to issue a certain credit as a loss or not. Often the bank also securitizes these credits - in fact, that was the subprime crisis, an oversight that the United States had regarding the quality of the credits: these receivables have become very attractive, even if they are bad. Banco do Brasil produced a statistical model on top of the Union's active debt to see the percentage of chance of recovery. And it was even noticed that a lot of information is missing to make this database - like the registration of guarantees. This information exists with little quality, because the type of guarantee is not known - whether immovable, surety, insurance, precatory, receivable. To have a more manageable debt assessment, more information is needed. When Portugal changed the process of collecting active debt in 2002, a strong investment was made in the management information provided by the system. There, in the executive collection process, when opening the system, there is information about the taxpayer's life, detailed information. Here, we are sometimes charging taxpayers who have passed away or companies that no longer exist. It is necessary to allow traceability of assets, and this is the job of the bank.

Valor: Does this imply discarding part of the active debt?

Adams: Yes, it implies canceling undue or bad debts. We have to recognize credits that are unenforceable in order to have a real situation of what is collectible, so that the administration cost is also reduced. There is no reason to overburden the State with credits that are almost a century old. Strictly speaking, all credit has to be entered in the active debt, but I can start creating parameters so as not to make a judgment. You can also find out if there is a way to reach successors if the company has closed. This is a management job, there is nothing legal about it. This is the different emphasis that will be given now, we are experiencing a strong structural change. We will have an agile and more secure tax administration for us and the taxpayer.

Valor: Some time ago, the São Paulo attorney's office made a similar survey on the State's active debt and came to the conclusion that 70% of it was uncollectible…

Adams: There is a principle in the Canadian Taxpayers' Code of “charging what is due”. It seems obvious, but in practice it means that I will not charge what I will not be able to receive, regardless of the model. This is the guideline: to ensure that what goes to Justice and to the attachment is in fact due and liable to be charged. It does not make sense to spend R $ 20 to collect a R $ 1 credit. Today we have a first assessment that says that the average cost for the State when filing an execution action is R $ 13 thousand. This resulted in a restriction on the filing of foreclosures only for credits exceeding R $ 10. In other words, the collection work has to be less bureaucratic, we cannot transform the attorney's office and the judges into a mere notary office for receiving and forwarding credits. We have to be elective in this process to make credit effective. Therefore, certain amounts will be charged in another way, through a private collection agent.

Value: And with the bank collection will there be registration with Serasa?

Adams: Yes. Small credit, which is expensive to charge directly, becomes more feasible if charged under this model. Our intention is that only at the end of the friendly collection process will the credit go to Serasa. And the first example of this will be that of rural credit, which belonged to banks and since 2002 was acquired by the Union.