Put Mariana Martins – 17/07/2020
The Senate approved this week (July 14, 2020) in a remote deliberative session the Complementary Bill (PLP) 9/2020, which allows companies that have opted for the Simples Nacional to negotiate their debts through a tax transaction. The PLP aims to regulate art. 5, paragraph II, item a of Law No. 13,988/2020 (Legal Taxpayer Law), which highlights the need for an authorizing supplementary law so that the transaction in the Simples Nacional can involve discounts.
The benefit of the extension covers Simples Nacional debts in the administrative or judicial litigation phase or registered as active debt of the Union, so that companies that calculate taxes under said regime are allowed to use all types of tax transactions regulated to date and available to private entities, namely: (i) ordinary transaction (for which a new reopening notice is expected), (ii) extraordinary transaction (with a deadline for adhesion until July 31, 2020), (iii) exceptional transaction (with a deadline for adhesion until December 29, 2020, designed specifically to benefit companies that have been affected by the Covid-19 pandemic) and (iv) transaction in small-value litigation and widespread legal controversy (whose notice containing deadlines and procedures is still pending publication).
The PLP makes a reservation regarding the portion of ICMS and ISS calculated under the Simples system, respecting the competence of the States and Municipalities to institute a transaction within the scope of their internal legislation, with specific rules for the settlement of these taxes, so that the transaction regulated by PLP 9/2020 constitutes a tax waiver instrument only with regard to federal taxes.
Tax transactions within states and municipalities are still quite timid, having undergone very few regulations to date, such as the municipality of Blumenau, which instituted tax transactions in 2017, even before the enactment of MP 899/2019 and its conversion into Law No. 13,988/2020. It is expected that, in a certain way, the possibility of transactions for Simples Nacional debts will serve as inspiration for states and municipalities to regulate the institute in their legislation, so that, in the near future, this negotiation option will be available to all taxpayers, and not just micro and small businesses.
The expansion of the possibility of using the transaction to all companies, despite all the improvements still needed to ensure a broad scope for negotiation between the Tax Authorities and taxpayers through mutual concessions, as provided for in art. 171 of the CTN, undoubtedly represents progress in the sense of providing the most weakened entities by the crisis with the opportunity to maintain their tax regularity, especially because in the view of the PGFN, the transaction itself would overcome the need for new special installment programs (Refis), which would benefit bad payers and level the playing field for all taxpayers by offering linear benefits, not linked to the economic capacity of the taxpayer. Although not all types of transactions focus on the financial capacity of the debtor, it is certain that extending it to small business owners will enable the resumption of many small businesses, or perhaps a dignified end for those who did not survive the months of the pandemic.
In addition to authorizing the use of the transaction to negotiate Simples Nacional debts, PLP 9/2020, which is awaiting presidential sanction, also extended to 180 days the deadline for micro and small businesses to formalize their adhesion to Simples Nacional, counting from the opening date stated in the CNPJ, with cumulative compliance with the 30-day deadline after approval of state or municipal registration.
Our tax team will monitor the conversion of the PLP into a Complementary Law and will report any changes resulting from possible vetoes by the President of the Republic.