The Decree 47057/2020 published on 05/05/2020 and amended on 05/25/2020, came to regulate the Temporary Budget Fund (Fundo Orçamentário Temporário – “FOT”), instituted by Law 8645/2019, replacing the State Fund for Fiscal Balance (FEEF ).
With FOT, the tax incentives for Tax on Circulation of Goods and Services (ICMS) are conditioned to a monthly deposit of 10% of the incentive amount, that is, on the difference between the ICMS calculated without the application of the benefits (ICMS “full”) and the ICMS calculated after the benefits applied.
The new fund includes all taxpayers who benefit from tax incentives, except those who choose Simples Nacional and companies under the tax substitution regime. Until then, according to the FEEF rules, only taxpayers earning revenues greater than BRL 100 million/year were subject to supplementary payment.
It is noteworthy that, as established by the decree itself, the fund is valid as long as the state's Tax Recovery System lasts.
The establishments contributing to ICMS, located in the State of Rio de Janeiro, which enjoy the following benefits or incentives, are required to make the deposit in the FOT:
1) present in the Deferment Manual, Extension of Payment Period, Suspension and Tax Incentives and Benefits, established by the Decree 27815/2001;
2) financial-fiscal and financial whose enjoyment results in a reduction in the amount of ICMS payable, including when the tax credit is extinguished through offsetting, as provided for in Law 2823/1997, Article 3 and in Decree 25980/2000, Article 1;
3) those resulting from rules related to:
3.1) special tax system or any alternative form of tax assessment not included in the offsetting system, made through periodic confrontation between debts and credits;
3.2) determination of the tax due for tax substitution in a manner different from the regular rules provided for.
The following benefits or incentives are excluded from the deposit obligation:
1) of Law 1954/1992, for cultural and sports projects sent or approved during their term;
2) of the Laws 4169/2003, 4173/2003, 4892/2006, 6331/2012, 6648/2013, 6821/2014 and 6868/2014;
3) of Law 4177/2003, Articles 3, 6 and 9, subject to the restrictions provided for in Paragraph 6;
4) of Decrees 29042/2001, 32161/2002, 36376/2004, 37210/2005, 43739/2012 and 46680/2019;
5) of Title V-A of Book V, in Book XIII, for the internal retail operations with a new motor vehicle and operations with a used motor vehicle, as well as in Title III of Book XV, all of the RICMS/2000;
6) of ICM Agreement 44/1975v and ICMS Agreement 94/2005;
7) that include operations performed with medicines that are included in the National List of Essential Medicines (Relação Nacional de Medicamentos Essenciais - “RENAME”) or in the list of the Brazil’s Popular Pharmacy Program (Programa Farmácia Popular do Brasil - “PFPB”), under the normative acts published by the Ministry of Health;
8) classified as suspension and extension of payment term;
9) from determination system by estimate, provided that the provisions of Complementary Law 87/1996, Article 26, Paragraph 1 are obeyed;
10) classified as deferral, except for those that are from reduction in the ICMS amount payable, covered by the obligation to make the deposit in the FOT, as follows:
10.1) deferral on acquisitions of permanent assets;
10.2) deferral of shipping of goods for taxpayers opting for Simples Nacional;
10.3) deferral of internal operations between establishments of the same economic group, when covered by the same tax treatment.
11) classified as exemption, when levied on goods shipping operations with bottles, containers and packages, including sacks, empty or whose value is not counted in the value of the goods they pack, in the cases provided for in ICMS Agreements 88/1991 and 42/2001, as they do not result in a reduction in the ICMS amount payable;
12) levying on imports where there is no transfer of ownership;
13) that promote exemption whose beneficiary is an agency or entity of the direct or indirect public administration of the State of Rio de Janeiro, both in the position of recipient and sender;
14) granted to taxpayers opting for Simples Nacional.
The obligation to deposit in the FOT must be observed as of April 2020, with the amount being monthly calculated, per establishment, and paid by the 20th day of the month following the determination. Therefore, the first maturity occurred on May 20, referring to April/2020.
The taxpayer in order to determine the amount of the monthly deposit in the FOT, must:
Monthly determine the amount of tax due, considering the enjoyment of all the benefits from which the taxpayer is beneficiary or which affect operations;
Monthly determine the tax that would be due disregarding the enjoyment of the tax benefits of which it is a beneficiary or that are levied on the operations, except those indicated in the list of exceptions (Article 2 of the Decree);
Calculate the monthly unpaid amount as ICMS, less the amount determined in accordance with “1" from that determined in terms of “2";
Multiply by 0.1 (one tenth) the total determined under the terms of “3”.
In addition, in the ascertainments provided for in items "1" and "2", the establishment must:
a) to consider the tax substitution and imports amounts, when tax benefits are levied on the respective operations;
b) to consider the debit balance as positive and the credit balance as negative;
c) to disregard the amount of the credit balance from the previous period, if any; and
d) to consider the financial benefits to be used in the period in which the respective reduction of the ICMS payable amount is determined.
The deposit related to the FOT must be made through the State of Rio de Janeiro Payment Form (DARJ), generated at the SEFAZ-RJ Online Payment Portal.
Failure to pay within the provided term the full amount due for the deposit in the FOT:
1) implies the application of the late payment penalty and other additions provided for in Article 173 of Decree-Law 5/1975 - 0.33% per day limited to 20% and interest on late payments (SELIC);
2) subject the taxpayer to the penalty provided for in Article 60 of Law 2657/1996 , when identified during the tax proceedings.
Failure to comply with the obligation will result in the permanent loss of the right to enjoy the respective tax, financial-tax or financial benefits and incentives, if the beneficiary taxpayer does deposit in the FOT within three (3) consecutive months or not.
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