It is undeniable that the recovery of tax credits is an important tool for Brazilian companies of all sizes. However, Normative Instruction RFB No. 2.055/2021,from the Federal Revenue of Brazil, it generates the understanding for the federal agency that the offsetting of credits should be completed within five years from the final judgment of the judicial action that recognized the taxpayer's right.
Such understanding, in addition to contradicting the content of article 168 of the National Tax Code (CTN), significantly impacts taxpayers who have large tax credits. Depending on the operational structure of the company, it is not possible to use all of these credits in a short period of time
Decisions of the Federal Regional Courts (TRFs), however,have been recognizing that this deadline should not be applied to the use of credits, but as a limit for the compensation procedure to begin
A very significant decision was made by the 13th Panel of the Federal Regional Court of the 1st Region. The Reporting Judge of the case, Jamil Rosa de Jesus Oliveira, expressed a vote supporting that "(…the five-year period is only for the start of the compensatory procedure and, considering that compensation has already begun, the total amount of credits recognized in court can be utilized, until its exhaustion”.
Another decision, agora da 12ª Vara Federal Cível de Belo Horizonte/MG, in a writ of mandamus filed by Marcos Martins Advogados for a client in the metallurgical sector, extended the five-year deadline imposed by the RFB, recognizing that there is no time limit for the company to carry out the tax offset of its credits. The decision ensures greater stability to the company's cash flow, that will not be prevented from "surprise" from offsetting its credits
In your sentence, Federal Judge Daniel Carneiro Machado stated “que não se afigura razoável impor às empresas a exigência de consumir/compensar seus créditos tributários em determinado período de tempo, if the existence of upcoming debts to offset depends on their size and activity. Such a requirement would constitute a manifest arbitrariness without any legal basis, creating a clear restriction on the offset of improperly paid credit in violation of the judicial executive title”
The understanding that is being consolidated represents a significant victory for taxpayers in the interpretation of tax compensation legislation and demonstrates the essentiality of the support of a legal team for advising companies
With the new interpretation, companies now have the opportunity to better plan how and when to use their tax credits, what can help relieve financial pressure, allowing for a more strategic and more suitable action to your circumstances.
