Judicial Recovery and Taxes
The draft bill from the Federal Government that amends the Bankruptcy Law (Law N. 11.101/05) opens the debate on the reform of the law.
Among the issues that require improvements are those related to tax liabilities prior to the filing of a judicial recovery claim and to tax contingencies that have as generating factor the remission of private debts.
The original text of the Bankruptcy Law and Complementary Law N. 118/2005 – which amended the National Tax Code (CTN), to regulate matters that depend on a complementary law – tried to resolve tax liability problem by: (i) granting the right to special installment payment for companies under judicial reorganization; and (ii) requiring the presentation of negative or positive certificate with effect of negative tax debts, after approval of a judicial recovery plan. Unsuccessfully.
In order to equate the liabilities of the companies it is necessary for the Tax Authorities to compromise.
The presentation of a negative certificate of tax debt proved impracticable, as the laws did not institute the special installment payment. This led to case law to consolidate in the sense of the unenforceability of the presentation of tax certificates, while not issuing special installment laws for companies under judicial reorganization (in this sense Special Appeal REsp 1.187.404 – MT, Rapporteur Justice Luis Felipe Salomão, Special Court of the Superior Tribunal of Justice – STJ).
The lack of a valid and effective law on the payment of installments gave rise to the problem of the continuation of the fiscal execution with the attachment of assets and/or revenues that would prevent the company from recovering. The STJ resolved the impasse with the attribution of the decision on such constrictions to the jurisdiction of the Court of Judicial Recovery (in this sense CC 149.827 – RN, Rapporteur Justice Nancy Andrighi, Second Panel).
At the federal sphere, Law N. 13.043/2014 was introduced including article 10-A to the Law N. 10.522/2002, establishing a step-up installment payment for companies under judicial reorganization, with a maturity of 84 months, with the establishment of reduced percentages for the installments to be paid in the first years. This law did not solve the problem, given the requirement of consolidation of all debtor’s tax debts and the renunciation of the right to discuss them, and the STJ decided that its editing does not exclude the competence of the Judicial Recovery Court to decide on constriction of assets of the company under judicial recovery (in this sense CC 150.844 – GO, Rapporteur Justice Marco Buzzi, Second Panel).
In this scenario, the governor of the Federal District filed ADC (Claim for Direct Unconstitutionality) N. 46, still not judged and whose object covers the declaration of constitutionality of articles 57 of the Bankruptcy Law and 191-A of the National Tax Code. Without wishing to exhaust the matter, the fact is that there is an evident incompatibility between means and ends in the requirement of tax certifications for judicial recovery, and, therefore, a violation of the principle of reasonability, since the tax credit is not subject to judicial recovery proceedings.
Additionally, the requirement is an indirect means of compelling the taxpayer to pay the tax, violating the due process of law.
In short, it would be better to revoke Articles 57 of the Bankruptcy Law and 191-A of the CTN.
The idea of installment payments is good, but in order to provide a solution to the tax liability of companies undergoing judicial reorganization – which is an economic condition for success in overcoming crisis – it is necessary that there be an effective commitment by the Tax Authorities to the recovery of the company. Consideration should be given to the enactment of laws that establish parameters to allow the granting of differentiated installments and which are conditioned, for example, to the maintenance of activities, of jobs etc… One may think of the edition of a complementary law that will allow the States and the Federal District grant amnesty and installments, regardless of any agreement. The solution of past liabilities, by a company under judicial reorganization, under the terms of laws that amnesty the fines and grant differentiated installments is an issue unrelated to “fiscal war”. Therefore, the supplementary law may create an exception to the rule of the agreement, since the purpose of the Constitution, by giving to the complementary law the function of regulating how incentives and fiscal benefits will be granted or revoked, through deliberation of the States and the Federal District, was to avoid the “fiscal war”.
Lastly, the question of the tax effects of reducing debts obtained in successful negotiations: the discounts obtained in the renegotiation of debts are considered operating revenues and, therefore, a taxing event of Cofins and the PIS/Pasep Contribution and have repercussions on the net income and, therefore, on the basis for the calculation of the Corporate Income Tax (IRPJ) and the Contribution on the Net Profit (CSLL). In legal and economic terms, this problem is easily solved with the institution of exemption in favor of the company under judicial reorganization, for the discounts obtained in the judicial recovery plan approved by the judge.
In the case of IRPJ and CSLL, in which there is a limit of 30% to compensate the profit of a fiscal year with tax losses of prior years, regardless of their constitutionality – a matter that is back in discussions with the recognition by the Supreme Federal Tribunal (STF) of general repercussion in the Special Appeal RE 591.340 – the possibility of offsetting the profit obtained with the reduction of its debts, without the limit of 30%, would already be a relevant contribution for the recovery of the company and easy to implement, because it does not burden the public treasuries.
Paulo Penalva Santos and Vanilda Maioline Hin are partners of Rosman, Penalva, Souza Leão, Franco, Vale Advogados.
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