[Free translation]
Provisional Measure No. 783 (DOU dated 5/31/17) was published, establishing the Special Program for Tax Regularization - PERT for installment payment of debts to the RFB and PGFN. This act "replaces" Provisional Measure No. 766/2017 that had established the Tax Regularization Program (PRT), which lost its validity before being converted into law.
The RFB and PGFN, as of 06/30/17, within the scope of their competencies, will edit the acts necessary to carry out the procedures below.
WHO MAY JOIN PARCEL
PERT shall be individuals and legal entities, including those in judicial recovery.
DEBTS THAT MAY BE INTEGRATED BY PERT
PERT covers debts of a tax and non-tax nature, expiring on or before April 30, 2017, including those subject to prior termination or active installments, including those registered as active debt of the Federal Government, under administrative or judicial proceedings, or arising from official posting made after the publication of this Provisional Measure.
TERM OF ACCESSION
The adhesion to PERT will occur through an application to be made until August 31, 2017 and will cover the debts indicated by the taxable person.
The granting of the application for membership of PERT shall be conditional upon the payment of the cash value or the first installment, which shall occur until the last working day of the month of the application.
PARTICIPATION IN THE FRAMEWORK OF RFB
Within the scope of the RFB, the taxable person who joins the PERT can settle their debts by choosing one of the following modalities:
MODALITY I - RFB
• 60 parcels
• Entry of 20% (installments in 5 installments)
• With the possibility of using Tax Loss and BCN CSLL
• No reduction of interest and fines
The minimum initial payment (in kind) of 20% of the consolidated debt (before the reductions) in 5 monthly and successive installments, maturing from August to December 2017.
In this option, the tax loss and the negative calculation basis of the CSLL or other own credits related to the taxes administered by the RFB may be used for settlement of installments.
Any remaining balance shall be paid in cash in up to 60 additional installments, payable as of the month following the initial payment.
MODALITY II - RFB
• 120 parcels
• Without the possibility of using Tax Loss and BCN CSLL
• No reduction of interest and fines
Payment of the consolidated debt in up to 120 monthly and successive installments, calculated in accordance with the following minimum percentages, applied to the value of the consolidated debt:
• 0.4% from the 1st to the 12th installment
• 0.5% from the 13th to the 24th installment
• 0.6% from the 25th to the 36th
• from the 37th installment onwards - percentage corresponding to the remaining balance, in up to 84 monthly and successive installments.
MODALITY III - RFB
• For debtors with total debt up to R $ 15,000,000.00
• Up to 175 parcels
• Entry of 7.5% (installments in 5 installments)
• With the possibility of using Tax Loss and BCN CSLL
• With reduction of interest and fines
Debtors with total debt (before reductions) equal to or less than fifteen million reais (R $ 15,000,000.00) must make the initial payment (in kind) of at least 7.5% of the value of the consolidated debt (before reductions).
The initial payment can be made in 5 monthly and successive installments, due from August to December 2017, and the remaining:
a) fully paid in January 2018, in a single installment, with a reduction of:
• 90% of default interest
• 50% of the fines (of default or isolated)
b) installments in up to 145 monthly and successive installments, due as of January 2018, with a reduction of:
• 80% of default interest
• 40% of fines (delinquency, ex officio or isolated)
c) installments in up to 175 monthly and successive installments, due as of January 2018, with a reduction of:
• 50% of default interest
• 25% of fines (delinquent, legal or isolated)
Each installment shall be calculated based on the amount corresponding to 1% of the gross revenue of the legal entity, referring to the month immediately prior to the payment, and may not be less than 1/175 of the total consolidated debt.
In this option, the tax loss and the negative calculation basis of the CSLL or other own credits related to the taxes administered by the RFB may be used to settle installments.
MODALITY IV - RFB
• For debtors with total debt greater than R $ 15,000,000.00
• Entry of 20% (installments in 5 installments)
• Up to 175 parcels
• Without the possibility of using Tax Loss and BCN CSLL
• With reduction of interest and fines
Debtors with total debt (before reductions) exceeding R $ 15,000,000.00 (fifteen million reais) must make the initial payment (in kind) of at least 20% of the value of the consolidated debt (before reductions ), without the possibility of using Tax Loss and BCN CSLL. The initial payment can be made in 5 monthly and successive installments, due from August to December 2017 and the remaining installments shall follow the same rules as the REDUCTION OF FISCAL AND NEGATIVE CALCULATION BASIS OF CSLLA. Following the reductions in fines and interest and the use of other own debts to the RFB, the debtors, in the modalities of installments, may use credits equivalent to 25% of tax losses and 9% (company in general) of the CSLL's negative calculation basis, with the settlement of the remaining balance, in cash, by the number of installments provided for the modality. tax loss carryforwards and CSLL negative calculation basis, the amounts calculated up to December 31, 2015 and declared until July 29, 2016, either own or the tax officer or co-responsible for the debt may be used. CSLL calculation for private insurance companies, capitalization companies and legal entities items I to VII and item X of paragraph 1 of art. 1 of Complementary Law 105/2001, will be determined by applying a 20% tax rate and for credit cooperatives at the rate of 16%. Tax credits and tax loss carryforwards of CSLL from parent companies may also be used and controlled, directly or indirectly, or companies that are controlled directly or indirectly by the same company, on December 31, 2015, domiciled in the country, provided that they remain in this condition until the date of the option for discharge. PARCELATION IN THE FRAMEWORK OF THE PGFNN In the scope of the Attorney General of the National Treasury, the debts registered in Active Debt of the Union may be included in the PERT, however, without the possibility of using Tax Loss and NCB CSLL, in the following modalities: MODALITY I - PGFN • 120 installments • No reduction of interest and fines Consolidated debt payment in up to 120 monthly and successive installments, calculated in accordance with the following minimum percentages, applied to the consolidated debt: • 0.4% from the 1st to the 12th installment • 0.5% from the 13th to the 24th installment • 0.6% from the 25th to the 36th installment • from the 37th installment onwards - percentage corresponding to the remaining balance, in up to 84 monthly and successive installmentsMODALITY II - PGFN • For debtors with total debt up to R $ 15.000.000,00 • Up to 175 installments • Entry of 7.5% (installment in 5 installments) • With possibility of offering a payment in payment of d and immovable property • With reduction of interest and fines Debtors with total debt (before the reductions) equal to or less than fifteen million reais (R $ 15,000,000.00) must make the initial payment (in kind) 7.5% of the value of the consolidated debt (before the reductions). The initial payment may be made in 5 successive monthly installments, due from August to December 2017, and the remainder: a) fully paid in January 2018, in with a reduction of: • 90% of late payment interest • 50% of fines (default or isolated) • 25% of legal charges, including attorney's fees (b) installments in up to 145 monthly and successive installments, payable as of of January 2018, with a reduction of: • 80% of interest on arrears • 40% of fines (default, legal or isolated) • 25% of legal charges, including attorney's fees) divided into up to 175 monthly and successive installments, due from jan (25% of the legal fees, including attorney's fees). Each installment will be calculated based on the amount corresponding to 1% of the gross revenue of the legal entity, referring to the month immediately preceding the payment, and may not be less than 1/175 of the total consolidated debt. In this modality, after the application of fines and interest reductions, there is the possibility of offering in payment of immovable property, provided that it has previously been accepted by the Federal Government, to discharge the remaining balance, in compliance with the provisions of art. Law no. 13,259 / 2016.MODALITY III - PGFN • For debtors with total debt greater than R $ 15,000,000.00 • Up to 175 installments • Entry of 20% (installments in 5 installments) • With reduction of Interest and Fines • Without the possibility of offering a loan in payment of real estate. Debtors with total debt (before the reductions) exceeding R $ 15,000,000.00 (fifteen million reais) must make the initial payment (in kind) of, at least, 20% of the value of the consolidated debt (before the reductions), without the possibility of offering a tax on real estate payments. The initial payment may be made in 5 consecutive monthly installments, maturing from August to December 2017 and the remaining installments must follow the same rules of the MODALITY II - PGFN.REGRAS COMUNS (RFB / PGFN) MINIMUM AMOUNT OF EACH PLOT The minimum value of each monthly installment installment will be: • R $ 200.00 (two hundred reais), when the debtor is a natural person • R $ 1,000 0 (one thousand reais), when the debtor is a legal entity. The amount of each monthly installment, at the time of payment, shall be increased by SELIC interest, accumulated monthly, calculated from the month subsequent to the consolidation month up to the month prior to the payment date, and of 1% in relation to the month in which the payment is made. VEGETABLE DEBTS DOES NOT FORbid the installment in the PERT of debts related to withholding taxes, third-party discount or subrogation (IRRF, CSRF and INSS withheld); It is also forbidden the payment or installment of taxes payable by a person with bankruptcy or civil insolvency decreed and of debts arising from the launching of a legal act in which, after a final administrative decision, the fraud, evasion and collusion hypothesis defined in art. 71, art. 72 and art. 73 of Law No. 4,502 / 64. THE ACCESSION TO THE PERT IMPLIES • The irrevocable and irreversible confession of the debts in the name of the taxpayer in the condition of taxpayer or responsible and designated by him to compose the PERT • The full and irreversible acceptance, by the taxable person as taxpayer or responsible, of the conditions established in this installment program • The obligation to pay regularly the installments of the consolidated debts in PERT and the debts due after April 30, 2017, registered in SAD or not • The prohibition of inclusion of the debts that make up the PERT in any other form of subsequent installment payment, except for the reparcelling referred to in art. • The automatic maintenance of the charges arising from the filing of property, fiscal precautionary measures and the guarantees provided administratively, in the actions of fiscal execution or any other lawsuit. EXCLUSION OF THE EXEMPTION shall include exclusion of the debtor of the PERT and the immediate demandability of the total debit confessed and not yet paid and automatic execution of the guarantee provided: • Failure to pay three consecutive or six consecutive installments • Failure to pay a installment, if all others are paid • The RFB or PGFN's finding of any act tending to deplete the taxpayer's assets as a way of fraudulent compliance with the installment payment • The bankruptcy order or liquidation of the legal entity opting; • The granting of a precautionary fiscal measure, to the detriment of the opting person, in accordance with Law No. 8,397 / 92 • The declaration of the inappropriateness of the registration with the CNPJ • The regular non-payment of the installments of the consolidated debts in the PERT and the debts due after April 30, 2017, registered or not in Active Debt of the Union; Regular compliance with the obligations with FGTS.DIBITS THAT ARE FOUND IN ADMINISTRATIVE OR JUDICIAL DISCUSSION To include in the PERT debts that are under administrative or judicial discussion, the taxable person must give up prior to the appeals or administrative appeals and legal actions that have as their object the debts that will be removed and to waive any allegations of law on which these challenges and appeals or judicial actions merge, and to file, in the case of lawsuits, request for the termination of the process with resolution of the merits, pursuant to item "c" of item III of the caput of art. 487 of CPC. Only partial withdrawal of appeal and administrative appeal filed or proposed legal action will be considered if the debt subject to withdrawal is capable of distinguishing the other debts discussed in the administrative proceeding or in the judicial action. Proof of the request for withdrawal and the waiver of legal proceedings shall be filed at the integrated service unit of the fiscal domicile of the taxable person until the last day established for the adhesion to PERT. The waiver and waiver do not exempt the author from the action of payment of the fees, under the terms of art. 90 of the CPC. Deposits linked to the debts to be paid or installments will be automatically transformed into definitive payments or converted into Union income. After the allocation of the amount deposited to the debt included in the PERT, if debts remaining unpaid by the deposit are left, the debit balance may be removed. After the conversion into income or the transformation into final payment, the taxable person may request the withdrawal of the remaining balance, if any, provided there is no other charge payable.
