STJ DECIDES THAT COMPANIES ON THE PRESUMES PROFIT CANNOT DEDUCT FROM THE GROSS REVENUE THE REIMBURSEMENT OF MATERIALS FOR CONSTRUCTION
The 1st Panel of the STJ, in the judgment of REsp 1,421,590 / RN, ruled that the taxpayer cannot deduct from the gross revenue, for purposes of calculating the IRPJ and CSLL (corporate taxes) under the presumed profit, the amounts related to the reimbursement of materials for civil construction. In the Court’s view, the presumed profit is an optional regime, which already considers all expenses and costs, by applying the statutory presumed profit margin to calculate the basis of IRPJ and CSLL. The STJ understood that, if the taxpayer wants to exclude such amounts, it should opt for the real profit regime, not being possible the combination of regimes to decrease the tax basis.
STF DISMISSES THE MATTER OF THE INCLUSION OF CPRB IN THE PIS/COFINS BASIS
The STF decided for the absence of general repercussion in the discussion about the inclusion of CPRB in the PIS and COFINS basis, claiming that such a theme would involve federal legislation analysis. In addition, it understood that the matter is not related to the general repercussion issues related to the exclusion of ICMS from the PIS and COFINS basis and the exclusion of ICMS from the CPRB basis.
Therefore, the matter will not be analyzed by the Supreme Court and the analysis of this theme should be left to the STJ to decide.
STF DISMISSES THE MATTER OF THE IRREVERSIBILITY OF THE OPTION TO COLLECT CPRB FOR 2018
The STF decided not to rule on the discussion about the possibility of maintaining the payment of the CPRB, instead of regular payroll tax, in the calendar year of 2018, due to the exclusion of certain activities from such regime by Law nº 13.670 / 2018. For the STF, the discussion does not involve constitutional aspects.
With the amendment promoted by the Law of 2018, many taxpayers went to the Judiciary to discuss their right to be kept in such regime during that year, since the legislation established that the option for CPRB at the beginning of the year would be irrevocable. Taxpayers argue that such option should also bind the Union. This matter has not yet been pacified at the courts.
STJ RECOGNIZES GENERAL REPERCUSSION IN THE APPLICATION OF THE PRINCIPLE OF ANTERIORITY ON THE REDUCTIONS OF TAX BENEFITS OF THE REINTEGRA REGIME
The STF recognized the existence of general repercussion and will analyze an appeal that deals with the application of the principle of annual precedence in connection with the reductions of REINTEGRA rates, on the grounds that it is up to the STF to interpret and standardize the understanding of the referred constitutional principle.
Thus, the STF should analyze the merits of the discussion, which questions the reduction of the REINTEGRA rate (used to calculate the amount of credit that exporting companies would be entitled to receive as a refund for the tax accumulated in the productive chain destined for exportation), in the course of the same calendar year.
NATIONAL TREASURY ATTORNEY’S OFFICE AUTHORIZES ITS ATTORNEYS NOT TO CONTEST AND APPEAL IN ACTIONS INVOLVING FOUR NEW TOPICS
The National Treasury Attorney´s Office published orders authorizing its Attorneys not to challenge and to not appeal in processes involving the discussion of the following issues: (i) the collection of IPI (excise tax) on stolen goods; (ii) the incidence of ITR (tax on rural property) on invaded land; (iii) the inclusion of freight in the IPI basis; (iv) and the levy of INSS on amounts transferred by health insurance companies to accredited doctors and dentists. This measure guarantees greater legal certainty to the issues and stems from the consolidated jurisprudence favorable to taxpayers on such matters.
STJ DECIDES THAT IRPJ/CSLL APPLIES TO MONETARY RESTATEMENT OF FINANCIAL INVESTMENTS
The 2nd Panel of the STJ has decided that the IRPJ/CSLL applies to the monetary restatement of financial investments. According to the taxpayers, the monetary restatement would not correspond to an acquisition of income, but to a simple restoration of the value of the currency. However, according to the STJ, with the deindexation and the stabilization of the economy since the Real Plan, anything added to the nominal value of the currency can be considered taxable income, as is the case of the monetary correction. This decision agrees with the recent decision of the 1st Panel and ends the discussion of the thesis in the STJ. It is expected that the matter is brought to the STF to rule in last instance.
LAW THAT MODIFIES THE RULES FOR GRANTING PROFIT PARTICIPATION TO EMPLOYEES (PLR) IS ENACTED
Law No. 14,020/2020 established new rules for the granting of Profit Sharing Programs (PLR). The main changes are as follows: (i) permission to establish multiple PLR programs; (ii) establishment of a peremptory 10-day deadline for the union to indicate its representative to the joint committee; (iii) possibility of setting individual goals for the employees; (iv) prevalence of the autonomy of will on the rules of the PLR; (v) possibility of stipulating the PLR and its rules only 90 days before the payment of a single installment or the final installment; and (vi) express provision that the failure to comply with the periodicity provided by the Law No. 10,101/2000 exclusively invalidates the payments made in disagreement with the rule.
FEDERAL GOVERNMENT ANTICIPATES THE END OF THE ZERO TAX RATE OF THE IOF ON CREDIT OPERATIONS
Decree No. 10,551/2020 was published in the Official Gazette (extra edition) of November 25, 2020, amending Decree No. 6,306/2007 (Tax on Financial Operations Regulations – RIOF), and putting an end to the zero tax rate of the IOF on credit operations as of November 27, 2020.
BRAZIL’S FEDERAL REVENUE (RFB) PUBLISHES NEW NORMATIVE RULLINGS (IN) TO PROMOTE CHANGES IN FOREIGN TRADE RULES
The measure seeks to unify some Normative Rulings and at the same time introduce new rules on certain foreign trade matters, namely: (i) the qualification of declarants of imported, exported and interned goods in the Manaus Free Trade Zone, (ii) inspection procedure upon customs clearance and (iii) temporary export and temporary admission regimes.
These Normative Instructions, in force since December 1, 2020, deal, in general lines, with the following matters: automatic enrollment in the foreign trade system, term for automatic exclusion from the system, extension of the rules to unincorporated entities (such as consortiums) (IN RFB 1.984/2020); procedures of combat to customs fraud, reducing terms of investigation procedures e expanding the possibilities of providing guarantees in lieu of retention of goods (IN RFB 1.986/2020); and increased term for temporary admissions, effects of Term of Responsibility, import declaration support documentation, possibility of green channel (automatic clearance) for temporary admission, unified export declaration, possibility of change of modality of temporary admission, increased threshold for waiver of guarantee (IN RFB 1.989/2020).