Tag: Contumaz Debtor

ETCO develops material with the objective of clarifying in a clear and simplified way, what is the Debtor Contumaz, the losses that this type of debtor causes to the country and how we must combat it.

Bill wants to characterize the persistent tax debtor

By: Valentina Trevor (Portal Jota)

The regulation of art. 146-A - complementary law that characterizes stubborn debtors Federal Constitution - expected since 2003, is close to being realized. Last month, Senator Ana Amélia (PP / RS) presented Senate Bill No. 284/2017. The bill establishes special taxation criteria, with the objective of preventing competition imbalances, without prejudice to the Union's competence, by law, to establish norms with the same objective.

It is not the first attempt to regulate the article, but, for Edson Vismona, Executive President of ETCO - Brazilian Institute of Ethics in Competition, “now the proposal is part of a coordinated effort between the State and the private sector to serve the interests of society”, which can contribute to the rapid processing.

Senator Ana Amélia, author of PLS, points out that “the objective is to avoid fraud, tax evasion and adulteration of fuels. The project aims to contribute to preventing unfair and predatory competition ”.

For her, the practice of the frequent debtor, especially in highly taxed sectors, such as beverages, cigarettes and fuels is extremely harmful to the purse and competition. For the senator, "who pays dearly with these serious irregularities is the consumer, the environment and the revenue, due to tax evasion".

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Source: Portal Jota (04/09)

Bill that characterizes the regular tax debtor is presented in Congress

The National Union of Fuel and Lubricant Distribution Companies (Sindicom), an entity that represents the largest fuel distributors in the country, presented this Tuesday, 22nd afternoon, to senators and deputies, in Brasília, a complementary bill that seeks to characterize the figure of the regular tax debtor, with mechanisms to differentiate him from the eventual debtor, as well as punishment. The project targets the sectors in which taxes are relevant in the composition of prices and which have a production or marketing chain that impairs the efficiency of the control of tax evasion, and not only the fuel segment, in which R $ 4,8, XNUMX billion are withheld annually, according to a study by the Getúlio Vargas Foundation.

Leonardo Gadotti Filho, Sindicom's executive chairman, says that the default debtor causes a competitive imbalance and should be differentiated from the eventual debtor, who may be facing cash flow problems. “The law cannot consider everyone the same. It is necessary to make a differentiation ”, he explains. “We intend to involve society in the discussion, so that it supports decisions in Congress. This is a big problem, which we intend to expose on social media. ”

The complementary bill is authored by Senator Ana Amélia (PP-RS) and will be considered in the Senate. The justification, which the Broadcast, Grupo Estado's real-time news service, had access to, mentions that there are cases in which the value of taxes exceeds the profit margin of the product, making it impossible for competition between payers and tax evaders, and that traditional means of fiscal control have proved insufficient to combat corporate structures organized to evade taxes.

“As a result of the numerous practices to avoid paying due taxes, which are not infrequently associated with crimes such as smuggling and counterfeiting, it is estimated that, only in the sectors of cigarettes and fuels, subject to high tax charges compared to other products , about R $ 8 billion are evaded annually ”, says the justification.

The project provides that the Federal Government, States, Federal District and municipalities may establish criteria for the fulfillment of tax obligations, such as maintaining uninterrupted inspection in the establishment of a taxable person; anticipation or postponement of the taxable event; concentration of tax incidence at a certain stage of the economic cycle; compulsory installation of production, marketing and stock control equipment; adoption of an estimation regime; among other measures.

The text of the bill also provides that the administrative authority may change the status of the taxpayer in the taxpayer register to the suspended or canceled modalities. The cancellation would be justified by reasons such as evidence that the company was constituted for the practice of structured tax fraud and for the production, commercialization or storage of stolen, stolen, falsified, adulterated goods or in non-compliance with the standards established by the regulatory agent and / or competent supervisory body.

Sindicom has a program called Legal Fuel, which seeks to combat defaults, tax evasion, adulteration of the content and quantity of products sold to consumers. The entity has tried to create jurisprudence that differentiates the incumbent debtor from taxes from the eventual and strengthen the Special Taxation Regimes. Other measures sought are the concentration of taxation on the most solid link in the chain, production - which is in line with current discussions with the government on PIS / Cofins; and the uniformization of the ICMS tax rates for fuels among the states.

To access the full text of the project, click here

 

The smoke behind hard-hitting debtors

By Edson Vismona

Last Wednesday (19), a task force, made up of agents from the Federal Police, the Federal Prosecutor's Office and the Federal Revenue Service, launched a major operation, called “Ex Fumo”, against a gang that has been operating in the cigarette sector for decades. According to information released in the media, the target of the operation is national cigarette manufacturers whose modus operandi the repeated evasion and default of federal taxes.

As a result, on Thursday (20), the Secretariat of the Federal Revenue of Brazil, through an act of its General Inspection Coordinator, declared the special registration of a cigarette manufacturer of the company Bellavana Indústria, Comércio, Importação, Exportação to be canceled. de Tabacos Ltda. And, the following day (21), the National Health Surveillance Agency - Anvisa, decided to suspend cautiously, as a measure of sanitary interest, all the registrations of the cigarette brands manufactured by that company. More: Bellavana's vast majority partner - Mr. Rafael Gois - was arrested by the Federal Police accused of tax crimes and, according to the media, he was largely responsible for improving the scheme generated in the sector that cost billions of reais to public coffers.

In this sense, although it is almost impossible to measure the size of the losses suffered by these cigarette companies, like Bellavana, given the existence of clandestine parallel factories and production lines, it is good to remember that some of them, based on information from the Ministry of Finance, together, in an updated calculation only until October 2015 (when the list of the Union's 500 largest debtors was released), a total of R $ 16,7 billion. American Virginia Indústria e Comércio de Tabacos alone owes more than R $ 4 billion to the Federal Treasury, appearing on this list as the 9th largest debtor in the country.

Therefore, operating in an absolutely unfair manner, the public coffers, the national industry and the companies that act in accordance with the rules are left to account for their losses, as the amounts owed by these frequent debtors will never be paid and the damage in the fair market will never will be undone.

The first step was taken by the “Ex Fumo” operation. But there is much more to be restrained, since they are companies that have been succeeding in the Brazilian cigarette market for many years, through subterfuges, judicial maneuvers and scams against national laws (tax, health, competition, industrial property, etc.) - for if you have an idea of ​​the size of the scheme, more than 13 companies were closed by the same practices repeated in recent years by the tax authorities, giving way to identical ones, including those that sell the same brands, thus guaranteeing the perpetuation of the unfair commercial operation.

It is up to the State agencies to continue investigating and fighting other cigarette manufacturing companies still in operation, which do so much harm to society. In addition, the improvement of normative instruments would certainly contribute - as an example, today, on the agenda of the Federal Revenue, is the revision of Normative Instruction No. 770/2007.

The Legislative Power also has a fundamental role, in that the proposal of more severe laws would reduce the gaps widely used by these persistent debtors.

Last but not least, it is up to the Judiciary to be attentive to the cunning attempts of companies like these, in order not to be fooled by the seductive rhetoric of the small business pursued by the truculent Treasury, the fallacious argument that jobs closed and that the preservation of the company and business activity should be prioritized.

In this regard, it should be noted that the Supreme Court will have an excellent opportunity, on August 17, to act. On that date, the STF should resume the judgment of the Declaratory Action of Unconstitutionality - ADI 3952, proposed by the Christian Labor Party - PTC, through which tax evaders and defaulters can benefit if the unconstitutionality of part of Decree-Law 1593 / is recognized. 77, more specifically the prerogative there granted to the Federal Revenue of Brazil to cancel the special registration of cigarette manufacturers that repeatedly fail to comply with their tax obligations.

Brazil is changing. The Brazil that we all want is possible, it is enough to remain vigilant and active against those who attempt against the nation. We cannot and will not succumb. The Institutions of our Republic are serious and will continue to give severe responses. They will never escape the fight.

 

Edson Vismona is president of ETCO.

Source: JOTA (26/07)

Judges debate the importance of legal certainty and combating repeat debtors to attract national investment

PHONACREThe I National Forum on Competition and Regulation (Fonacre) was marked by debates involving important issues for the improvement of magistrates. During the panels, which counted with the participation of ministers, lawyers, lawyers and counselors, the judges were able to develop analyzes on the problem of the persistent debtor, the appropriation of taxes, leniency agreements, compliance and competitive ethics, regulatory agencies and recovery processes judicial.

The confrontation of persistent debtors, who create distortions in the market and damage assets, was the central theme of the first day. It was this matter, even, that guided the idealization of Fonacre last year.

Unanimously, the panelists defended the importance of legal certainty to attract national investment and investigations into the conduct of companies, such as what happens in the Federal Police's Lava-Jato and Zelotes operations. This is because about R $ 2 billion are not collected in Brazil due to the crimes committed.

Another point analyzed during the Forum was the search for compliance, that is, compliance with the legal and regulatory rules established for business. In the view of Edson Vismona, president of the Brazilian Institute of Ethics in Competition (ETCO), "the defense of the law must base not only the coexistence of citizens, but also business coexistence".

The second day of panels evaluated the importance of regulatory agencies and the consequences of judicial recovery processes on the economic and competitive scenario of Brazilian companies.

In the presentation on the limits and impacts of regulatory agencies, the retired federal attorney and judge, Liliane Roriz, used the thoughts of jurist Diogo de Figueiredo Moreira Neto who says that “Brazil suffers from a serious chronic deficiency in the administrative aspect resulting […] that our legislator is idealistic, but the administrator is ineffective. Therefore, according to the lawyer, it is essential to analyze the regulatory role.

 

I must, I don't deny it, but I also don't pay

Stubborn debtors do not deliberately settle taxes as a way to beat competition

 

by: Kalleo Coura (Portal JOTA)

 

The state of São Paulo has R $ 1,5 billion in problems that, despite countless efforts, it cannot solve. The amount corresponds to the size of the tax debt of just one large refinery, which the state tries, but is unable to receive.

The state has already tried to charge. Unsuccessfully. The state has already tried to seize assets. Without success (in a process in which he tried to recover R $ 1 million, for example, he found assets in the amount of R $ 280,83). He has even tried to cancel the state registration of tax substitution. Also unsuccessful - due to a judicial reorganization process in Rio de Janeiro.

Despite this, on average, each month, the company fails to pay an additional R $ 30 million in ICMS. “This is the most emblematic example of a persistent debtor,” says São Paulo state attorney Alessandro Junqueira, of the Special Action Group for Tax Recovery (GAERFIS). “Judicial recovery is being used improperly as a way of shielding the company and its assets. Everything indicates that in the future the refinery will leave a billionaire hole, which will not be paid, in several states of the federation ”.

Contumable debtor is the company that claims to have a tax debt, but in a repeated and premeditated way does not act to settle it. As the entrepreneur does not evade, he just does not pay the tax due, in theory, he does not commit a crime. In addition, it leaves the competition behind, as the non-payment of taxes is passed on to the price of the products, which are artificially cheaper.

“You owe tribute, eventually, it's life. The problem is when you structure your business with the objective of defrauding the tax authorities and thereby having a significant gain on the competition ”, says lawyer Edson Vismona, president of the Brazilian Institute of Ethics in Competition (ETCO).

Read the full story on the website JOT

 

Legal certainty is essential to attract investment

In an interview with Valor Econômico newspaper, ETCO's Executive President, Edson Vismona,
talks about competitive ethics and the importance of ethical principles that promote fair competition

by: Gleise de Castro

vismona-photo-valueFor Edson Luiz Vismona, who assumed in October the executive presidency of the Brazilian Institute of Ethics in Competition
(ETCO), investigations into the conduct of companies on various fronts, such as the Lava Jato and Zelotes operations of
Federal Police, lead to a clearance of the market. What is being questioned are old practices, until recently
previously accepted as natural, but affecting the economy, compromise the attraction of investments and competitiveness
the country.
Lawyer specialized in commercial defense and consumer law, Vismona states in this interview with Valor that
believes that consolidated ethical principles increase the country's legal certainty and credibility. In the area of
fuels, points out as perverse the practice of persistent tax evasion, an illegal and predatory way to obtain easy profit,
which affects the sector's competitiveness, generating a tax loss of R $ 2 billion annually.

Source: Valor Econômico, November 16, special edition Competitive ethics

To read the full story, click here

Contumaz Tax Debtor returns to the agenda at important events in the month

image-stampCombating the persistent tax debtor is one of ETCO's priority projects. The Institute contributes to this battle by sponsoring studies, holding or supporting events and producing publications to spread the importance of this struggle across the country.

Unlike the eventual debtor, the regular debtor uses the non-payment of taxes as a form of unfair advantage over the competition, passing on this difference in price, gaining market and increasing his profits. Often this debtor makes inspection difficult, refuses to show tax books and uses third parties (oranges), so that partners do not suffer punishment.

To discuss this topic and discuss effective means of combating the debtor, Sindicom, one of ETCO's member companies, promoted on the 3,4rd and 5th of November, a seminar addressed to magistrates, members of the Public Ministry, prosecutors with attributions in the area state employees who work with tax collection.

"The predatory action of this unfair competitive practice, must be contained, restraining the enormous losses for the treasury and for the fair competition", declared Edson Vismona, president of ETCO, during the event.

On 11/11, the newspaper Valor Econômico holds the seminar Unfair Competition and challenges in the fuel sector, which will also address the issue, among other topics.

The event is free and interested parties can register by clicking here.

To learn more about the topic, access the special content DEBTOR CONTUMAZ

 

Fighting the debtor is essential in times of crisis

I must, do not deny, and do not pay! This is the motto of the so-called “hard debtor”, an unethical entrepreneur who, unlike the eventual debtor, fails to collect taxes systematically, with the premeditated intention of obtaining competitive advantage, generating
thus competitive imbalances.

As inefficient entrepreneurs, who only work by not paying taxes, they generate a (illegal) benefit and only survive on the basis of an artificially achieved cost.

In sectors with a high tax burden (fuels, cigarettes, beverages and medicines), of immediate consumption and low margin of return, the fact of not paying taxes gives the debtor entrepreneur an abysmal competitive advantage.

Just to give you an idea, on a pack of cigarettes sold at R $ 3, taxes reach R $ 2. Similarly, on a liter of gasoline C, whose cost to the final consumer is around R $ 3,50 , 2, the Treasury gets R $ XNUMX.

A question always arises when discussing this issue: how do these companies remain for so long on the margins of legality? Despite the evident absurdity, the explanation is simple. The regular debtor needs tax litigation with the tax authorities to extend his stay in the market. Discuss and rediscuss in administrative and judicial proceedings,
sponsors smoky legal theses that confuse justice and public prosecutors.

In a time of economic crisis and large collection deficit, combating the debtor is a necessity to stop the bleeding of non-payment of taxes in sectors with high default rates. Among the country's 500 largest debtors, there are several that
accumulate debts above R $ 1 billion.

They use and abuse the slowness of Justice, the bureaucracy of tax authorities, using the traditional jurisprudence of the Supreme Federal Court that prohibits the Public Power from applying political sanctions to collect taxes. Such precedents come from a time when there was only the figure of the eventual debtor, the one who fails to pay taxes for a momentary, temporary difficulty, whose overcoming puts him back to normal. In this case, an installment program generates positive results.

The debtor often acts contrary to ethics. Failing to pay the tax debt is part of the deal. The loss of tax revenue to the tax authorities is permanent, it will never recover. The assets of these companies, normally hidden in the name of "oranges", feed corruption, organized crime and money laundering.

The STF's traditional jurisprudence on the prohibition of political sanctions for collection of fees is not applicable in cases of regular debtors. A new chapter opens. In a specific case analysis, the Supreme Court has already understood the
of a cigarette company with large tax debts, thus determining the end of its activities.

In such cases, there is a need to block the business function or to collect taxes in advance. The benefit of the State comes with the preservation of the tax collection. That of society, with an ethical business environment.
In a period of national life when the three levels of government are struggling with a lack of resources, a different look at the debtor is urgently needed.

Tax authorities, prosecutors, the Public Ministry and, especially, magistrates need to be aware of this modern phenomenon. To combat it, we must go beyond the traditional application of tax law. It is essential to preserve competitive ethics and
protect the state.
LUCIANO DE SOUZA GODOY, former federal judge, doctor of civil law from USP, is a lawyer and professor at the São Paulo Law School at Fundação Getulio Vargas

 

Source: Folha de São Paulo (19/07)