On 22 June 2022, Law No. 14,375/22 (resulting from the conversion into law of PLV 12/22 of MP 1090/21) brought, among other measures, relevant changes to the federal tax transaction regime dealt with in Law No. 13,988/20.
The most important changes are as follows:
(i) Possibility of entering into a transaction, individually or by adhesion, of federal tax debts that are under discussion at the administrative level;
(ii) Expansion of discounts from 50% to 65% of the total debt to be transacted;
(iii) Extension of the payment period from 84 to 120 installments, with the exception of social security debts, which can only be paid within 60 months due to the limitation contained in CF/88;
(iv) Use of tax loss credit and negative basis of CSLL, including those held by: the tax person or co-responsible for the tax debt; controlling or controlled legal entity, directly or indirectly; or a company directly or indirectly controlled by the same legal entity, limited to 70% of the remaining debt balance after the incidence of discounts;
(v) Use of precatory or credit rights with a final and unappealable decision aiming at the amortization of the principal, interest on late payment and the fine;
(vi) Flexibility of guarantees to be presented by the taxpayer for the execution of the transaction agreement, in cases in which the “material impossibility” of providing a guarantee by the debtor or additional guarantees to those already formalized in legal proceedings is proven; and
(vii) Non-levy of IRPJ, CSLL, PIS and COFINS on discounts granted in the transaction as they do not fall under the concept of equity and revenue accrual.
It is expected that, in the coming days, the Federal Revenue Service of Brazil (RFB) and the Attorney General’s Office of the National Treasury (PGFN) will regulate the new provisions of Law No. 13,988/20, especially those dealing with the application of tax losses and the negative basis of CSLL on the remaining balance to be transacted after the application of discounts; the guidelines to be adopted by the treasury authorities for the relativization of the guarantees to be presented by the taxpayers; and the requirements to be fulfilled by taxpayers in order to submit an individual transaction proposal. It is important to mention that proposals for a transaction by membership are always published through specific notices dealing with the purpose of the transaction, term and conditions for its membership.
The changes brought to the federal tax transaction regime, through the enactment of Law No. 14,375/22, are extremely relevant as a measure of greater approximation between taxpayers and the Public Administration aimed at the extinction of the tax credit by the parties’ consensus, something inconceivable a few years ago.
