Legislation

What did the Law 13670/2018 change in federal tax offsetting processes?

On 05/30/2018, the Law 13670/2018 was published, bringing important changes in tax legislation to offset the tax payment loss with the reduction of taxes on diesel oil and its derivatives.

In addition, new rules for offsetting were included in the same legal act, and thus companies cannot use some tax credits. Faced with the great impact of these changes on companies’, DPC prepared the following summary:

1) The following cannot be offset by filing Per/DComp:

• debits that has already been subject to a non-ratified offsetting, even if the compensation is pending of final decision (according to new wording given to Article 74, § 3, V, Law 9430/1996);
• value object of a refunding or compensation request already rejected by the competent Federal Revenue of Brazil authority, even if the request is pending of a final decision (according to the new wording given to Article 74, paragraph 3, VI, Law 9430/1996);
• credit refunding or compensation request and the credit informed in a statement of compensation whose liquidity and certainty confirmation is under tax procedure (according to new wording given to Article 74, § 3, VII, Law 9430/1996);
• values of children’s and maternity allowance (as amended by Article 74, § 3, VIII, Law 9430/1996);
• debts related to the monthly payment by Corporate Income Tax (IRPJ) and Social Contribution on Net Income (CSLL) estimation, calculated in accordance with Article 2 of Law 9430/1996 (see new wording given to article 74, paragraph 3, IX, Law 9430/1996).

2) The official notice of the established differences will be limited to the imposition of an isolated penalty due to the non-offset ratification when a misstatement presented by the taxable person is proven (see Article 18, § 6, Law 10833/2003).

3) The amount corresponding to the debts offset related to the contributions in Article 2, of Law 11457/2007 shall be transferred to the General Social Security Fund within a maximum period of thirty (30) business days, counted from the date on which it is officially promoted or in which the declaration of compensation is filed (as new writing of article 26 of Law 11,457 / 2007).

4) The compensation of own debts related to any taxes and contributions administered by the Federal Revenue, which is dealt with in Article 74 of the Law 9430/96 (according to the inclusion of Article 26-A in Law 11457/2007):

4.1) applies to the offsetting of social security contributions of companies, domestic employers and workers, as well as contributions made by way of substitution and those due to Third Parties (Other Entities and Funds) made by the taxpayer who uses eSocial to calculate these contributions, provided that they cannot be subject to offsetting:

4.1.1) the contributions debit of companies, domestic employers, workers, established as substitutes and those owed to Third Parties:

a) for calculation period prior to the eSocial use; and

b) for the calculation period after the eSocial used with credit of other taxes administered by RFB for the calculation period prior to the eSocial use; and

4.1.2) the debit of other taxes administered by the RFB:

a) for the calculation period prior to the eSocial use to assess taxes with credit related to contributions of companies, domestic employers, workers, established as substitution and those due to Third Parties; and

b) with contributions credit of companies, domestic employers, workers, established by way of substitution and those due to Third Parties for the calculation period prior to the eSocial used to calculate these contributions.




4.2) does not apply to the contributions offsetting of companies, domestic employers, workers, established as substitution and those due to Third Parties made by other taxpayers who do not use eSocial; and

4.3) does not apply to Simples Doméstico.

Important: The payroll re-accountability will be effective as of Sep-01-2018, but the paragraph 13 of Article 9, of Law 12546/2011 remains unaltered and valid. This provision determines that, given the option for the exemption in January of each year, it will be irreversible for the entire calendar year, and can only be changed in January of the following year. Thus, changing the validity period of the option made would face legal security. Therefore, the companies met by the re-accountability may consult their legal system to determine the best strategy to adopt.