Income tax reform will hinder traditional planning
The income tax reform bill, submitted to Congress by the federal government, prevents or hinders the adoption of at least nine practices common today in companies, which result in the reduction of taxes and contributions to be paid. In the stock market, they are called legal tax planning, because they are not prohibited by law.Among the measures listed, experts warn that the use of goodwill would become illegal. âCapital reductionâ and the âuse of private-equity investment funds (FIPs) in mergers and acquisitionsâ would have increased taxation, closing the doors to tax planning.The items make up what lawyers have called the Secretariat of Federal Revenueâs âwish listâ, because they usually generate long and multimillion disputes between the tax authority and taxpayers, in the Administrative Council of Tax Appeals (Carf) and courts.In the most recent report in which goodwill is mentioned â" 2019 â" the tax authority says it has carried out 116 inspections related to the subject and issued notices of deficiency that add up to R$56.6 billion.The goodwill â" a value paid for the future profitability of an acquired or incorporated company â" could only be used as an expense, decreasing the basis for calculating the Business Income Tax (IRPJ) and the Social Contribution over Net Profit (CSLL) to be paid, in corporate operations carried out until the end of 2021 â" as the reform project establishes. Today it can be amortized in up to five years. If the new rule is confirmed, lawyers say, it could take companies to the courts.Although the current law allows amortization, the tax authorities usually issue a deficiency notice against taxpayers when they understand that the corporate reorganization had the sole purpose of reducing the payment of taxes â" an abusive tax planning.A survey of the law firm Mattos Filho on the cases that have been processed in the Carf and the judiciary until the end of 2020 shows that of 164 cases of goodwill analyzed by the Higher Chamber, Carf´s court of last resort, only five had decisions in favor of the taxpayer. The same survey shows that there were 56 judgments with merit decisions in the Judiciary, in the same period â" 29 in favor of taxpayers and 27 unfavorable.âThe tax authority has one interpretation, and the taxpayer understands it the other way round. The adjustment comes to modify the legal system as a whole. It will not solve the litigation of the past, but it will create a new rule for the future, which...
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