Government attitudes force Brazilian taxpayers to litigate over Tax Recovery Program
International Tax Review is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Government attitudes force Brazilian taxpayers to litigate over Tax Recovery Program

Taxpayers in Brazil will hope that the superior courts continue the recent thread of favourable judgements relating to the REFIS.

 It has been more than four years since the enactment of Law No. 11.941 of May 27 2009, which:

  • established the Tax Recovery Program (REFIS);

  • granted significant reductions in the payment of tax penalties and interest, enforced by the Brazilian Internal Revenue Service; and

  • made it the possible to divide outstanding debts into up to 180 installments.

However, Brazilian Internal Revenue Service bureaucracy and consecutive attempts by the National Treasury Attorney's Office at restricting and mitigating tax benefits force taxpayers to engage in legal battles to give effect to the benefits they are expressly entitled to by law.

Particularly for taxpayers who had judicial deposits, the REFIS, which was supposed to reduce tax litigation, has not proved efficient so far.

Sparse interpretations by the Treasury Attorney’s Office and Specialised Departments of the Internal Revenue Service make it even harder to combine an applicable determination to all taxpayers. Therefore, taxpayers each have to resort to the Judicial Branch to enforce their right to tax benefits to the exact extent intended by the law.

Over the years, taxpayers enrolled in the REFIS realised that appeals filed in an attempt at restricting benefits were not one-off measures, but rather a strategy articulated by the Treasury Attorney’s Office to question the rights expressly specified by Law No 11.941/2009.

The appeals filed by the Treasury Attorney’s Office present arguments which are diametrically opposed to what is expressly stated in the legal text.

One of the great debates between taxpayers and the Treasury Attorney's Office relates to the possibility of using net operating losses and the Social Contribution on Net Income (CSLL) negative tax base for discharge of interest and penalties over debts included in the REFIS, when fully guaranteed by deposits in court.

Despite delays regarding the judiciary’s opinion about the conflicts involving the REFIS, 2013 resulted in great advances, considering the rendering of judgments ensuring benefits to taxpayers. The Brazilian Second Regional Court of Appeals gave a judgment in one of the first rulings on the matter, and confirmed the possibility of using net operating losses and the CSLL negative tax base for discharge of interest and penalties in cases in which there are deposits in court.

In the next few years we will have the final decision of the superior courts on these issues. Meanwhile, taxpayers await the resolution of conflicts and hope that all benefits guaranteed by law are put into effect.

Alessandra Gomensoro (agomensoro@mattosfilho.com.br)

more across site & bottom lb ros

More from across our site

The reported warning follows EY accumulating extra debt to deal with the costs of its failed Project Everest
Law firms that pay close attention to their client relationships are more likely to win repeat work, according to a survey of nearly 29,000 in-house counsel
Paul Griggs, the firm’s inbound US senior partner, will reverse a move by the incumbent leader; in other news, RSM has announced its new CEO
The EMEA research period is open until May 31
Luis Coronado suggests companies should embrace technology to assist with TP data reporting, as the ‘big four’ firm unveils a TP survey of over 1,000 professionals
The proposed matrix will help revenue officers track intra-company transactions from multinationals
The full list of finalists has been revealed and the winners will be presented on June 20 at the Metropolitan Club in New York
The ‘big four’ firm has threatened to legally pursue those behind the letter, which has been circulating on social media
The guidelines have been established in the wake of multiple tax scandals and controversies that have rocked the accounting profession
KPMG Netherlands’ former head of assurance also received a permanent bar and $150,000 fine; in other news, asset management firm BlackRock lost a $13.5bn UK tax appeal
Gift this article