By Evelin Spinosa and Tatiana Giovanelli

Law No. 13,670/18 introduced the unification of the legal regimes for offsetting federal taxes (tax and social security credits) for legal entities subject to digital recording of tax, social security and labor obligations, known as eSocial, for calculating social contributions (employer's share and third parties), provided for in articles 2 and 3 of Law No. 11,457 of 2007. IN RFB No. 1810/2018 regulated the unification of legal regimes.

According to the aforementioned legislation, the unified tax offset will only apply to legal entities that use eSocial to calculate the aforementioned contributions. These companies may also perform cross-offsetting (between social security or tax credits and debits), subject to the restrictions imposed by the legislation resulting from the transition between the regimes. We highlight the restriction imposed on the offsetting of debits and credits calculated in periods prior to the declaration by eSocial, that is, only debits and credits accumulated after the company joined eSocial may be offset.

Therefore, credits and debits prior to joining eSocial will remain under the system provided for in IN RFB 1,717/2017, that is, there is an express prohibition on offsetting tax credits with social security debts; possibility of offsetting tax credits with tax debts; possibility of refund and reimbursement, in cases provided for by law.

IN RFB No. 1810/2018 also provides for the prohibitions arising from Law No. 13,670 of 2018, regarding:

1. To offset the estimated debt of IRPJ or CSLL, of amounts of family allowance and maternity allowance and of credit subject to tax proceedings;
2. Regarding the offsetting of debts related to the monthly collection by estimate of IRPJ and CSLL, it is necessary to note that “estimates improperly offset generate a false negative balance of tax which in turn is also improperly offset with other debts, including other estimates, implying the endless non-payment of the tax credit due by the taxpayer” — Statement of Reasons No. 00107/2017 MF to Bill No. 8,456, of 2017;
3. The prohibition of offsetting credits subject to tax proceedings “aims to eliminate the possibility of extinguishing tax debts through the use of credits when, in a risk analysis, indications of unfoundedness are identified and the document presented by the taxpayer is under tax proceedings for analysis and recognition of the credit right” — Statement of Reasons No. 00107/2017 MF to Bill No. 8,456 of 2017.

The prohibition applies only to the tax procedure distributed through Fiscal Procedure Distribution Term (TDPF), not applying to tax procedures for analyzing refunds, reimbursements, reimbursements or compensation that do not require the issuance of a TDPF.

It is also defined that the offsetting of social security contribution credits resulting from legal action, through a statement of offsetting, may only be carried out after prior qualification of the credit, maintaining its exemption only for offsetting in GFIP.

Our team is available to assist with discussions, questions and tax repercussions on this topic.