[Free translation]
It was published on 05/01/2017 Provisional Measure 766/2017 that instituted the Tax Regularization Program (PRT) with the Federal Revenue Office of Brazil and the Attorney General of the National Treasury.
The debts matured up to November 30, 2016, of individuals and legal entities, including those subject to prior termination or rescission in installments, may be paid in the form of the TRP, in administrative or judicial proceedings, or as a result of legal posting.
The adhesion by the taxpayer to the TRP should occur within a period of up to 120 days, counting from the regulation by the SRFB / PGFN, scheduled to take place next February.
Unlike the expectation that has been created, the PRT does not represent a NEW REFIS, given that it was far below expectations, for the following reasons:
a) There is no provision for discounts for interest and fines;
b) There is no provision for discounts for the surrender fees;
c) Maintains SELIC as correction index;
d) Oblige the regular payment of all taxpayer debts due after November 30, 2016.
What is positive in the TRP, but that only serves some real taxpayers in very specific situations, is the possibility of using calculated credits at the rate of 25% of the tax loss and 9% of the negative calculation basis of the Social Contribution on Profit Net of CSLL, accumulated and other own credits, to offset up to 80% of the tax debt (including principal) under the SRFB.
The Provisional Measure may still be amended in the National Congress, since according to news reports the text presented by the government does not contemplate what was promised by the economic team in the negotiations with the parliamentarians.
PRT Rules
The debts of a tax or non-tax nature, due by November 30, 2016, of individuals and legal entities, including those subject to previous installments rescinded or active, in administrative or judicial proceedings, or of official posting made after the publication of the Provisional Measure.
The adhesion to the TRP will occur through an application to be made within a period of up to 120 days, counted from the regulation and will cover the debts in administrative or judicial discussion indicated to compose the TRP and the totality of the debts payable in the name of the taxable person, in the condition of taxpayer or responsible.
Within the scope of the Federal Revenue Service of Brazil, the taxable person who joins the TRP may settle the debts by choosing one of the following modalities:
1) Cash and cash payment of 20% of the value of the consolidated debt and installment of the remainder in up to 96 monthly and successive installments; and
2) 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:
(a) from the first to the twelfth installment - 0,5% (five tenths per cent);
b) from the thirteenth to the twenty-fourth installments - 0,6% (six tenths per cent);
c) from the twenty-fifth to the thirty-sixth installment - 0.7% (seven tenths percent); and
d) from the thirty-seventh installment onwards - percentage corresponding to the remaining balance, up to eighty-four monthly installments and successive installments.
3) Cash and cash payment of at least 20% of the value of the consolidated debt and settlement of the remainder with the use of tax loss carryforwards and negative basis of calculation of Social Contribution on Net Income (CSLL) or other credits related to the taxes administered by the Federal Revenue Service of Brazil;
4) Payment in kind of at least 24% of the consolidated debt in twenty-four monthly and successive installments and settlement of the remainder with the use of tax loss carryforwards and negative tax basis of CSLL or with other tax credits administered by the Federal Revenue Service of Brazil;
In the cases provided for in items III and IV above, if there is a remaining balance after amortization with credits, it may be split in up to 60 additional installments, payable as from the month following the cash payment or the month following the payment of the twenty-fourth minimum value of 1/60 (one sixty-eight) of said balance.
In the settlement of the debts in the form set forth in items III and IV above, tax loss carryforwards and negative CSLL tax credits calculated up to December 31, 2015 and declared until June 30, 2016, either own or the tax officer or co-responsible for the debt, and of controlling and controlled companies, directly or indirectly, or of companies that are directly or indirectly controlled by the same company, as of December 31, 2015, domiciledin the country, provided that they remain in this condition until the date of the option for discharge. The amount of credit arising from tax loss carryforwards and CSLL negative calculation basis will be determined by applying the following rates: a) 25% on the amount of tax loss; b) 9% on the basis of CSLL's negative calculation, in the case of other legal entities; c) 20% on the basis of CSLL's negative calculation, in the case of private insurance companies, capitalization companies and legal entities referred to in items I to VII and X of paragraph 1 of art. 1 of Complementary Law no. 105/2001; d) 16%, in the case of legal entities referred to in item IX of paragraph 1 of art. In the scope of the Attorney General's Office of National Treasury, the taxable person who joins the PRT will be able to settle the debts registered in the Active Debt of the Union, of the following form: 1) Cash payment of 20% of the value of the consolidated debt and installment of the remainder in up to 96 monthly and successive installments; or 2) Payment of the consolidated debt in up to 120 monthly and successive installments, calculated in accordance with the following minimum percentages, applied to the consolidated amount: a) from the first to the twelfth installment - 0.5%; (b) from the thirteenth to the twenty-fourth installments - 0,6%; c) from the twenty-fifth to the thirty-sixth installment - 0,7%; d) from the thirty-seventh installment onwards - percentage corresponding to the remaining balance in up to 84 monthly and successive installments. The installment of debits with the PGFN does not depend on presentation of guarantee, if the consolidated value is less than R $ 15,000,000.00 (fifteen million reais). The installment of debts whose consolidated value is equal to or greater than R $ 15,000,000.00 (fifteen million reais) depends on the presentation of a letter of guarantee or judicial guarantee, observing the requirements defined in the act of the Attorney General of the National Treasury . The option for the PRT entails automatic maintenance of the charges arising from the filing of fiscal precautionary property and the guarantees provided in the enforcement actions or any other judicial action. In order to include in the TRP debts that are in an administrative or judicial discussion, the taxpayer must first withdraw the objections or administrative appeals and legal actions that have as their object the debts that will be removed, and to waive any claims of law over which such appeals and appeals or judicial actions are merged and, in the case of lawsuits, file a petition for the termination of the case with resolution of merit, pursuant to item "c" of item III of the caput of art. 487 of Law 13,105, of 2015 - Code of Civil Procedure. Proof of the request for waiver and waiver of legal proceedings shall be submitted to the taxpayer's domicile for the taxpayer's full address until the last day of the deadline for joining the TRP. The waiver and waiver referred to in the caput does not relieve the author of the action of payment of the fees, under the terms of art. 90 of Law 13,105, of 2015 - Code of Civil Procedure. Deposits linked to the debts to be paid or installments will automatically be converted into definitive payments or converted into Union income. Minimum value of each monthly installment The minimum amount of each monthly installment payment under the SRF and PGFN will be: a) R $ 200.00 (two hundred reais), when the debtor is a natural person; and b) R $ 1,000.00 (one thousand reais), when the debtor is a legal entity. Other provisions The granting of the application for membership of the TRP shall be conditional on the payment of the cash value or the first installment, which shall occur until the last working day of the month of the application. The value of each monthly installment, at the time of payment, shall be increased by interest equivalent to the Selic reference rate, accumulated monthly, calculated from the month subsequent to the consolidation month up to the month prior to the payment date, and 1% month in which the payment is made. It will involve exclusion of the debtor of the PRT and the immediate demandability of the totality of the confessed debit and not yet paid and automatic execution of the guarantee provided: a) non payment of 03 consecutive or alternate 06 installments; b) non-payment of a parcel, if all others are paid; c) verification of any act tending to empty the patrimonial of the taxpayer as a way to defraud the fulfillment of the installment payment; d) decree of bankruptcy or extinction, by liquidation, of the legal entity opting; e) granting a precautionary fiscal measure, pursuant to Law No. 8,397 / 1992; f) declaration of unfitness of registration with the CNPJ, pursuant to art. 80 and art. 81 of Law 9,430 / 96; or g) non-payment of past due debtsafter November 30, 2016, whether or not registered as Active Debt of the Union; h) non-compliance with regular compliance with obligations with FGTS.Adherence to the TRP also implies: Irrevocable and irreversible confession of debts in the name of the taxpayer as a taxpayer or responsible and designated by him to compose PRT The prohibition of inclusion of debts which make up the PRT in any other form of subsequent installment payment, except for the reparcelling dealt with in art. 14-A of Law 10,522 / 2002.
