The Chamber of Deputies approved a bill that establishes stricter rules for deliberate debtors and creates programs to encourage corporate taxpayers to follow tax rules in partnership with the Federal Revenue Service. The proposal will be sent for presidential approval.
Authored by the Senate, Complementary Bill 125/22 defines that this type of debtor (contumacious) is one who owes a lot of taxes due to repeated behavior in relation to the Tax Authorities, seeking to avoid tax obligations.
An administrative process will be opened so that the taxpayer can defend himself before being considered a persistent debtor. To define the criteria, the project creates parameters for large debt, considered substantial.
The text approved this Tuesday (9) received a favorable opinion from the rapporteur, deputy Antônio Carlos Rodrigues (PL-SP). According to the rapporteur, the project attacks unfair competition by establishing precise criteria to segregate eventual default from that which is systematic and fraudulent.
“Companies that use non-payment of taxes as an illicit competitive advantage distort the market and harm productive investment,” he said.
Rodrigues stated that the imposition of restrictive measures protects the non-compliant businessman, ensuring that the market is governed by equitable tax rules.
According to the rapporteur, the increase in competition cannot be a justification for not fighting the persistent debtor.
“If the competition process is rigged in the sense that it is not the most efficient companies that gain market share, but rather those that evade the most, the country’s economy becomes less efficient,” he declared.
For him, the competitive advantage of the persistent debtor constitutes a “huge disservice” to the efficiency of the economic system.
Tax cooperation
The proposal works with a two-focus approach, according to Rodrigues. In addition to combating systematic debtors, it introduces a culture of fiscal cooperation with the Confia, Sintonia and OEA programs for self-regularization and transparency.
“Such financial and procedural incentives act as positive stimuli, rewarding good payers and inducing a greater degree of voluntary compliance”, he explained.
According to Rodrigues, allowing taxpayers to recognize debts and present a regularization plan, with defined deadlines, prioritizes dialogue over immediate coercion and avoids the prolongation of unnecessary litigation.
“The project represents a decisive step towards the modernization of Brazilian tax management, balancing the repression of fraud with the promotion of cooperative compliance”, he stated.
Criteria
For a debt to be considered substantial, in terms of federal taxes, the total debt must be equal to or greater than R$15 million and equivalent to more than 100% of your known assets.
In relation to state and municipal taxes, specific legislation will have one year to define values and characterize the substantial debt. After this period, those mentioned are valid.
The concept of repeated debtor (repeatedly) involves someone who does not pay taxes in at least four consecutive assessment periods or in six alternating periods within 12 months. In companies, these periods are monthly or quarterly.
It must also be proven that frequent debt is unjustified as there are no objective reasons to explain the lack of payment.
Calamity
In the process, the taxpayer will be able to demonstrate that they have justifiably failed to pay taxes if it is due to situations such as:
– state of calamity recognized by public authorities;
– determination of a negative result in the current and previous financial year, unless there is evidence of fraud or bad faith;
– did not perform acts to hide assets and evade collection, such as distribution of profits and dividends, payment of interest on equity, reduction of share capital or granting of loans or loans by the debtor.
Professional debtor
The approved text also considers a “professional” debtor to be a taxpayer who is a related party (controlling or controlled party, for example) of the company that has been declared unfit or that has closed in the last five years with tax debts equal to or greater than R$15 million.
The project foresees the deduction of certain amounts to reach R$15 million:
– debts discussed in court by a company with payment capacity, after losing an appeal due to a tie-breaking vote at the Administrative Council for Tax Appeals (Carf);
– tax credits in legal discussion that are of great relevance and with many legal actions;
– late installments of installments or tax transaction agreements;
– debts suspended by court order, including active debt;
– installments that may be defined in state and municipal laws.
Process
When the Treasury identifies a possible persistent debtor, it must send a notification and grant a period of 30 days to pay the debt or present a defense with suspensive effect. If you fail to do so, you will be considered a persistent debtor and will receive penalties.
Employer Confederations will be able to file questions against the classification of associated companies until the final administrative decision is reached, but will not be able to file an appeal.
However, in some situations, there will be no suspensive effect on the process, such as:
– if the company was created to commit fraud or evasion;
– if the company has participated, according to evidence, in an organization formed to not collect taxes;
– if you use stolen, stolen, counterfeit, adulterated or smuggled merchandise.
Payments
The process will end if the questioned debtor pays the debt in full. If you negotiate the installment plan and keep it up to date, the process will be suspended.
However, if you deliberately delay payments in installments, the Treasury may go back and consider you a persistent debtor again.
Other situations in which the investigated taxpayer will no longer be characterized as a persistent debtor are: the absence of new debts classified as such, payment or if it is demonstrated that there is assets in a value equal to or greater than the debts.
Debate in plenary
During the plenary debate, the government leader, deputy José Guimarães (PT-CE), highlighted that the proposal will combat tax evasion and favor businesspeople who pay and contribute. “This has a big impact [para o equilíbrio] public accounts”, he said.
For deputy Hildo Rocha (MDB-MA), the proposal correctly conceptualizes the actions of persistent debtors.
“He [o devedor contumaz] creates the company to have a competitive advantage, which is not paying taxes. By not paying, they are able to sell with a lower profit margin and mistreat other companies that pay correctly.”
Hildo Rocha highlighted that the project combats tax evaders and organized crime and benefits good tax payers.
According to deputy Captain Alden (PL-BA), the approved text dismantles the “financial laundry” that supports trafficking, corruption and smuggling.
“Money is ammunition, and the State loses the war when it does not control the financial flow that feeds factions, militias and corruption schemes,” he said.
Representative Jandira Feghali (PCdoB-RJ), deputy leader of the government, recalled that the agenda was a constant demand from the government base.
“We are facing fraud against the Treasury. Consequently, it attacks money laundering and can reach organized crime.”
Representative Bohn Gass (PT-RS) stated that an operation like Carbono Oculto needed to come about for the Chamber to agree with the government that there must be legislation to combat the abuse of persistent debtors.
Coordinated by the Federal Revenue Service and the Public Ministry of the state of São Paulo, the operation dismantled a scheme of tax evasion, fuel adulteration and money laundering led by the criminal organization Primeiro Comando da Capital (PCC).
Deputy Merlong Solano (PT-PI) said that just 1,200 persistent debtors “stole” approximately R$250 billion from Brazilian society.
The agenda unites deputies from the right and left, according to deputy Bia Kicis (PL-DF), deputy leader of the minority. “We need to put an end to organized crime. We are fighting tax evaders, criminals.”
*With information from Agência Câmara de Notícias
