House approves MP that facilitates payment of disputed tax debts

Provisional measure allows the taxpayer to settle debts with the Federal Revenue due by June 30, 2015, if they are under administrative or judicial discussion
Nominal Vote MPV 685/2015
Deputies approved an opinion that reduces the value of the cash portion from 43% of the total debt to 30%, 33% or 36%. Photo by: Ananda Borges

The Plenary of the Chamber of Deputies approved on Tuesday (3) Provisional Measure 685/15, which allows the taxpayer to settle tax debts, due by June 30, 2015, with the Federal Revenue Service or the Attorney General of the National Treasury ( PGFN), if they are under administrative or judicial discussion. The matter will be voted on by the Senate.

To adhere to the Tax Litigation Reduction Program (Prorelit), instituted by the measure, the taxpayer must pay part in cash and the other part can be deducted with credits generated by the use of tax losses and the negative calculation base of Social Contribution on Net profit (CSLL).

The text approved for the MP is the opinion of Senator Tasso Jereissati (PSDB-CE), which reduces the value of the cash portion from 43% of the total debt to 30%, 33% or 36%.

If this installment is settled by November 30, 2015, it will be 30% of the consolidated debt. If the company chooses to install monthly installments, 33% (two installments) and 36% (three installments) will be used, with all installments adjusted by the Selic rate plus 1% in the month of payment.

The MP was published in July 2015 and envisaged September 30 as the last day for joining the program. The text approved by the Chamber passed to November 30th.

Already the amounts for settlement with the loss or negative base will be obtained in relation to that determined by the company until December 31, 2013 and declared until June 30, 2015.

The amount to be paid with tax debts will be determined based on the following rates:
- 25% on tax loss;
- 15% on the negative CSLL calculation base for private insurance companies, capitalization and financial institutions; and
- 9% on the negative CSLL calculation base for other companies.

The program allows companies to use their own losses and negative basis first to partially settle the consolidated debt.

If these are not sufficient, they can use those of controlled or controlling legal entities, directly or indirectly, as long as they are in this situation on December 31, 2014.

Another possibility is the use of losses and negative basis of the taxable person, usually the one responsible for collecting the tax without having any relation to the taxable event. However, the MP does not specify what types of situations of responsibility or co-responsibility are contemplated.

Among the subsidiaries that can generate credit to settle debts are those whose shares held by the parent company are less than 50% of the voting capital, but have an agreement to assign decision-making power to the other.

Giving up
Adherence to the program implies an irrevocable withdrawal from the administrative process and legal actions, as well as recognition of the debt in question.

This program will not cover debts arising from the withdrawal of objections, administrative appeals and lawsuits that have been included in previous installments, even if terminated.

Debts arising from the partial withdrawal of these funds and shares can only be paid under the rules of the MP if the respective credit to be paid off can be separated from the others.

The IRS or PGFN will have five years to approve the discharge. If approved, existing deposits linked to the debt will be automatically converted into Union income, with the remaining debt being settled in new money or with credits.

If the tax credit generated with the application of the indexes on the tax loss or negative basis of the CSLL is not validated, the taxpayer will have 30 days to pay this part in cash.

According to the Federal Revenue Service, of the more than 35,4 taxpayers with debts in administrative or judicial litigation, 28,4 (80%) have a tax loss from the Corporate Income Tax (IRPJ) or a negative calculation base of CSLL.

However, as membership is an option of the company, there is no way to estimate how many can join or how much the government should receive. The liability under judicial administrative discussion amounts to approximately R $ 860 billion, according to the agency.

Source: News Chamber Agency .

Plenary rejects amendment and concludes MP analysis on tax debts

The Plenary of the Chamber of Deputies rejected the amendment by Deputy Félix Mendonça Júnior (PDT-BA) to Provisional Measure 685/15 that intended to allow companies to deduct tax losses and other legal deductions up to 100% of the income tax and tax calculation base. Social Contribution on Net Income (CSLL).

With the vote on the amendment, the Plenary concluded the analysis of the MP. The matter will be sent to the Senate.

The MP allows the taxpayer to settle tax debts, due until June 30, 2015, with the Federal Revenue Service or the Attorney General of the National Treasury (PGFN), if they are under administrative or judicial discussion.

To join the Tax Litigation Reduction Program (Prorelit), instituted by the measure, the taxpayer must pay part in cash and the other part can be deducted with credits generated by the use of tax losses and the negative calculation base of Social Contribution on Net Income (CSLL).

The text approved by the Chamber is the opinion of the MP's rapporteur, Senator Tasso Jereissati (PSDB-CE).

Source: Home .

Contumaz Debtor and Competitive Ethics

Contumaz Debtor and Competitive Ethics

This month, Valor Econômico will hold the seminar The Debtor Contumaz and the Competition Ethics that aims to bring the discussion about the practice of the debtor contumaz in the country, the impacts caused by this figure in the state governments and in the country and what can be done to increase legal certainty and ensure ethical competition across the economy.

Date: November 16, 2015
Time: 8h to 13h30
Location: Hotel Intercontinental
Alameda Santos, 1123 - São Paulo, SP.

One of the projects in which ETCO works is the combating the persistent tax debtor, a type of company that practices unfair competition through the intentional non-payment of taxes. Check out.

Law reduces the number of regular ICMS debtors in Rio Grande do Sul by 26%

Since 2011, the government of Rio Grande do Sul has had a valuable instrument to combat ICMS tax evasion. It is a differentiated collection regime for the so-called debtor, a type of taxpayer who evades the tax on purpose to have an unlawful advantage in competition with other companies. This regime includes several measures to hinder tax evasion and has been obtaining important results. In four years, the number of companies in this situation has dropped 26%. In addition, Rio Grande do Sul was able to recover R $ 17 million owed by these taxpayers. Such results have drawn the attention of other states and inspired a draft state law against repeat debtors that has the support of ETCO-Brazilian Institute of Ethics in Competition.

The figure of the persistent debtor is present in several segments, but it is more common in sectors such as the distribution of fuels, drinks and medicines. In many cases, the payment of taxes is delayed for so long that, when the government is able to collect the debt, the value of the debt exceeds the assets of the company, making payment unfeasible. Many of these deals are closed before the government even makes a final decision on the matter.


Bad faith to increase profit

This type of debtor is different from the entrepreneur who, due to a momentary problem in his cash flow or any other eventuality, fails to pay the tax, but has an interest in regularizing his situation. “The regular debtor acts in bad faith, failing to pay taxes to increase his profit margins and to have undue advantages over the competition”, says Mario Luis Wunderlich, undersecretary of Revenue of Rio Grande do Sul. To separate these two types of debtors , the gaúcha legislation created a criterion to determine who can be classified as contumazado. According to the text, this category includes the taxpayer who fails to collect the ICMS for at least 8 months of the last year.

In addition, the legislation provides for the issuance of notices so that the taxpayer has the opportunity to regularize his situation before any form of penalty. Only after that can the company be included in the differentiated regime for regular debtors. Currently, 55 companies are in this category in Rio Grande do Sul - and about a thousand are at risk of joining the group.

Whoever enters this category should start to collect the ICMS at the time of issuing the note, instead of doing it monthly on the total of notes issued in that period. Another way found by the gaucho government to pressure taxpayers not to resort to this type of practice is to count on the support of the clients of these companies. For this, the redemption of ICMS credits theoretically paid by companies classified as permanent debtors is only possible if the tax collection guide is presented.

"With this, many companies end up doing business with whoever is listed," says Ricardo Pereira, who, at the time of the implementation of the law, acted as undersecretary of the State Revenue. In addition to serving as a form of pressure, this device allows the government to deal with another problem: by providing ICMS credits generated by a company that does not pay its taxes, the state tax system has a double loss. "In addition to not receiving, we had to pass this amount on, making the impact of tax evasion much greater than what is apparent," says Wunderlich.



Despite its benefits, the law in force in Rio Grande do Sul has been challenged. At first, the text was questioned by the State Court of Justice, which judged there was no reason to suspend its execution. Soon after, the Social Liberal Party sued the Federal Supreme Court (STF) alleging that the law is unconstitutional. According to groups that question the government's initiative, the project violates the right to free enterprise by instituting rules that make it difficult to carry out the commercial activities of companies that fall under the differentiated regime. "In fact, what hurts free enterprise are practices that are harmful to good competition," says Wunderlich. "This is what needs to be tackled." There is still no date for the judgment in the STF.

To reinforce the importance of legislation, groups with an interest in the topic, such as the National Union of Fuel and Lubricant Distribution Companies (Sindicom), have been supporting the gaucho government in the Supreme Court, through a legal instrument called amicus curiae, whereby an entity interested in the process requests the right to manifest itself in the case file, even if it is not one of the parties directly involved in the process. “Behind serious debtors there are real organizations that practice tax evasion as a source of illicit enrichment,” says Jorge Luiz Oliveira, executive director of Sindicom. "Against them, traditional inspection mechanisms are not enough: a differentiated regime is needed."

Throughout history, the STF has deemed some initiatives found by states to combat hard-hitting debtors to be unconstitutional. According to the understanding of the ministers, the appropriate way to get the taxpayer to pay his taxes would be tax enforcement. But they admit the imposition of differentiated obligations in exceptional cases.

ETCO also acts in the fight against the figure of the persistent debtor. The institute has started a series of initiatives in this direction that will be developed for at least the next two years. One of them was the support for the creation of a draft state law that details the exceptional situations to fit certain taxpayers in special regimes, prepared by the Dias de Souza Advogados Associados office based on a broad analysis of the jurisprudence. The text also describes the appropriate measures and limitations for their application. The objective is that the document serves as a reference for other states to create their own laws against heavy debtors. “It would be beneficial to adopt this law by the interested tax authorities, for the benefit of the market and the population in general,” says Hugo Funaro, a lawyer at Dias de Souza.


Paper industry intensifies fight against tax fraud

IMMUNE PAPER IMAGEThe paper industry is stepping up efforts to combat tax fraud in the sector. A campaign seeks to make consumers aware of the use of immune paper (sold tax-free) and measures are being adopted to curb criminal practices.

"The paper sector sees the fruits of collective efforts to fight fraud involving paper with tax immunity growing, which should be used exclusively for the printing of books and periodicals, as provided by the Brazilian Constitution". The statement is from the president of the National Association of Paper Distributors, Vitor Paulo de Andrade, commenting on the recent developments of the Immune Paper Operation, of the Federal Revenue.

Earlier this month, the Federal Prosecutor's Office in São Paulo denounced 11 people involved in fraudulent importation for money laundering, criminal organization and misrepresentation. Between 2009 and 2013, the group hid and concealed the origin, movement and ownership of around R $ 1,1 billion from various crimes, such as embezzlement and tax evasion. For this, it used shell companies, fake invoices and "oranges".

The criminal organization took advantage of the tax immunity granted to paper intended for books, newspapers and periodicals. However, instead of reselling the imported product without taxes to buyers linked to such purposes, the defendants passed it on to wholesale and retail companies with a price 20% lower than the market price, which generated millionaire profits. "The product is exempt from taxes to encourage education and culture, but ends up being diverted to the taxed paper market, resulting in unfair and fraudulent competition," says Andrade.

Source: Diário da Região (24/04)

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Judge condemns 11 for tax evasion and adulteration of fuels in PB

Judge Geraldo Emílio Porto, from the 7th Criminal Court of João Pessoa, sentenced 11 people for a scheme discovered by the Federal Police involving tax evasion and adulteration of fuels in Paraíba. Three state tax officials and some businessmen are among those sentenced.

Convictions are for active and passive corruption and crimes against the economic and tax order, in addition to falsifying documents. Judges can appeal the sentence in freedom. The decision was published on September 27 and acquitted 17 accused defendants.

About modus operandi of the scheme, the magistrate pointed out that three of the defendants, employees of the State Tax Authorities, “as civil servants, used the position to commit crimes of passive corruption, receiving money to stop inspecting goods that entered the territory of the state of Paraíba” .

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Source: G1

Fraud of R $ 1 million in cane transport

On 15/09, within the operation “The cane is ours”, police officers from the Fazendária Police Station started a fraudulent scheme for transporting and processing sugarcane. The fraud caused a loss of more than R $ 1 million per month in evasion of ICMS. In the investigation, which started about two months ago, there was a suspicion that Usina Paineiras SA, in Espírito Santo, was buying sugarcane from Lucahe Agropecuária, in São Francisco do Itabapoana, in the north of the state of Rio, and paying more sugar cane than the Rio de Janeiro plants, to manufacture ethanol.

The police discovered that Lucahe filled out the Auxiliary Document of the Invoice (Danfe), which authorizes the transport of cane to another state, with a volume of the product well below that which was actually transported. In one of the documents seized by the police, 20 tons of cane were transported on the last day 3. During the blitz, on the 9th of this month, the agents found in the truck a receipt for this shipment of cane, but with the correct weight: 26 tons and 480 kilos. More than six tons above what was reported when transported to the plant

- During the six months of the sugarcane harvest, approximately 120 trucks per day cross the border with approximately 30 tons of cane in each vehicle. On average, the price per ton is R $ 57. This gives R $ 38 million per harvest. This transaction has led to the bankruptcy of several plants in the north of the state - said one of the investigators.

Source: O Globo Online
Collaboration: Sindicom 

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Ten posts in ES are assessed in Operation “Integrated Pump”

The “Integrated Pump” operation was a task force between the State Secretariat of Finance (Sefaz), the State Procon, the Institute of Weights and Measures of Espírito Santo (Ipem) and the National Petroleum Agency (ANP), and supervised the quality of products and services offered by gas stations in Espírito Santo.

Sefaz, responsible for verifying the correct issuance of tax documents, using the PAF-ECF application and its integration with supply pumps found irregularities in three gas stations: one in Vila Velha, one in Cariacica and another in Serra. Two other posts in the municipality of São Mateus had problems with registration and took notice to regularize them.

“We checked that all the pumps were connected with the application, which controls the fuel outlet. Our function was to fight unfair competition and avoid tax evasion ”, stressed Sefaz's Retail Supervisor, Leandro Kuster, explaining that these posts received infraction notices and were fined.

Ipem was present analyzing the correct measurement and operation of the pumps. According to the tax agent of the agency Carlos Junior, the intention was to prove that the amount of fuel purchased according to the dial was in accordance with the amount that actually reaches the car's tank. In three stations, one in Santa Inês, Vila Velha, the 'low bomb' was found.

“We had to verify that when the consumer buys, for example, 20 liters, he is actually receiving this amount. We have a tolerance of 100ml more or less. The majority respected this limit. It is necessary to carry out a periodic review of the pumps to check whether they are in agreement ”, explained the Inspector, who sealed the pumps for the irregular flow and also imposed fines.

The ANP was responsible for analyzing the fuel quality of the service stations. The agency, represented by Procon-ES, assessed a post in São Mateus due to quality problems (gasoline outside the specifications of the ANP), generating interdictions in two nozzles and a fuel tank and also banning another station in the same city, which operated without ANP authorization.

At the site, the ANP checked whether the amount of ethanol present in gasoline was in compliance with what was permitted by law. Samples of gasoline, alcohol and diesel oil were collected and will be thoroughly analyzed in the laboratory for the presence of substances such as methanol, sulfur and solvents, subject to irregularities.

Source: Portal ES Hoje

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