2024-01-15 14:03:01
The Ministry of Finance through MF Normative Ordinance No. 14/2024published on 01/05/24, established limits for taxpayers to offset credits arising from a final and unappealable court decision, established in Provisional Measure No. 1,202/23.
The monthly compensation limitation provided for in the ordinance affects tax credits with a value equal to or greater than R$10 million, establishing the minimum number of months that the credit can be used, ranging from 12 months for amounts between R$10,000,000.00 to R$99,999,999.99 for up to 60 months for an amount equal to or greater than R$500,000,000.00.
According to the ordinance, the amount to be compensated monthly is limited to the credit value updated up to the date of the first compensation declaration, divided by the number of months.
According to the Minister of Finance, Fernando Haddad This is one of the necessary measures to allow the country to balance public accounts and reach zero deficit in 2024, as compensation caused a drop in revenue of more than R$60 billion in 2023. The minister also states that companies will continue to be able to compensate , but with predictability criteria.
For the tax professional Ricardo Vivacquafounding partner of Vivacqua Lawyers“the restriction on the immediate use by the taxpayer of credits recognized by the judiciary violates the acquired right, the principle of legality and res judicata, in addition to characterizing a compulsory loan, which can only be instituted by complementary law, under the terms of the article 148 of the Federal Constitution.”
“A compulsory loan cannot be created by Provisional Measure, given the express prohibition of item III, § 1, of article 62of the Federal Constitution, of dealing by Provisional Measure with a matter of exclusive competence of complementary law.”, explains Ricardo.
The Partido Novo filed a Direct Unconstitutionality Action with the STF on January 9, 2024. (ADI) nº 7587which questions the changes promoted by Provisional Measure No. 1,202/23, including the limitation of the right to compensation.
Ricardo warns that “regardless of the outcome of the ADI, to avoid enormous judicialization, the Government needs to clarify several points such as, which credits will be affected by the limitation of compensation, those that have already filed a request for compensation with the Federal Revenue Service, those resulting from lawsuits filed before the MP, even if there are no definitive decisions yet.”
According to Ricardo, “another point that needs clarification is the monthly compensation limit, is it per taxpayer or through legal action? Which makes a big difference, because if it is through legal action, the taxpayer who is successful in 2 legal actions will have a doubled monthly compensation limit.”
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