The tax settlement of administrative litigation, that is, of debts in dispute in the administrative sphere, will be more comprehensive than the settlement of active debt regarding the use of tax loss credits and the negative CSLL basis to reduce the amount of the debt after discounts. This is what is indicated in Ordinance 208/2022, of the Federal Revenue Service, published on Friday (12/8) in the Official Gazette of the Union. The rule, which regulates tax debt transactions within the scope of the Federal Revenue Service, covers an amount of R$1.4 trillion subject to negotiation.
The IRS regulation does not contain the restrictions of Ordinance 6,941/2022, of the Attorney General's Office of the National Treasury (PGFN), which covers the negotiation of active debts. However, it makes it clear that the authorization for the use of credits will be at the sole discretion of the tax authorities. Published on the 4th, the PGFN regulation limited the use of tax losses and the negative CSLL basis to irrecoverable or difficult-to-recover debts, and their use in the simplified individual and adhesion transaction is not possible.
Both the IRS and PGFN ordinances regulate Law 14,375/2022, which changed the tax transaction rules originally established in Law 13,988/2020. The new law increased the maximum discount allowed in the tax transaction from 50% to 65% and the maximum number of installments from 84 to 120. In addition, it allowed the use of tax losses and negative CSLL basis to deduct up to 70% from the total amount of the debt after discounts.
The IRS ordinance defines “contentious” as the debt pending petitions and appeals provided for in Decrees 70.235/72 and 7.574/11 and in Law 9.784/99, which are the rules that regulate administrative tax litigation. It also provides that the taxpayer may settle the debt “pending an appeal”, that is, before appealing to the Federal Revenue Judgment Offices (DRJ), which are the first administrative instance.
The rule adopts the same criteria as the PGFN for individual and simplified individual transactions, which are modalities in which the taxpayer can propose the negotiation of the debt to the tax authorities. The individual transaction covers taxpayers with debts starting at R$15T10 million, while the simplified individual covers debts from R$1 million to R$10 million.
Taxpayers with debts below R$1 million will be able to participate in the transaction by adhesion, that is, when the IRS itself publishes a notice. According to sources, the IRS is expected to launch a notice of transaction by adhesion for debts from administrative tax litigation in the amount of up to 60 minimum wages this month.
Positive evaluation
Lawyers gave a positive assessment of the Federal Revenue Service regulation. Jurists had expressed to JOTA their fear of litigation when the PGFN ordinance was issued, as they believed that the rule was more restrictive than Law 14,375 itself, which would open the door to questioning.
“The ordinance maintained positive aspects of the recent regulation made by the PGFN, such as greater access to individual and simplified individual transactions, which may cover debts starting at R$1 million. In addition, it indicates that the use of tax loss credits and negative CSLL basis will be more comprehensive in Federal Revenue transactions. These credits will not be limited to 'irrecoverable or difficult to recover' debts and may even be used in adhesion transactions”, assesses Álvaro Martins Rotunno, partner in the tax area of Gaia Silva Gaede Advogados.
For the tax expert, however, the rule left a gap. “The ordinance did not expressly address the possibility of using credits recognized in a court decision and authorized by the Federal Revenue Service, which was one of the taxpayers’ expectations,” he commented.
Vivian Casanova, from BMA Advogados, believes that the IRS ordinance is more in line with Law 14,375. “The IRS, in line with the law, did not limit the use of tax losses to irrecoverable and difficult-to-recover credits. The agency was more flexible, providing for the use in any type of transaction, including for principal amortization. Furthermore, [the ordinance] does not limit the use to a subsidiary basis for other credits,” she stated.
Attorney Juliana Camargo Amaro, partner at Finocchio & Ustra Advogados, highlighted the possibility of using tax losses and negative CSLL basis in transaction types that negotiate lower-value debts. “The IRS did not limit the use of credits to exceptional situations. Furthermore, using them in simplified transactions makes it easier for most taxpayers to settle their debts, since those who owe less than R$15T10 million will be able to use the benefits,” she stated.