MP prohibits compensation of PIS/COFINS credits and this section is rejected by the President of Congress
On 4/6, Provisional Measure No. 1,227 was published, which, among other provisions, limited the offsetting of credits from the non-cumulative PIS and COFINS regime only with the debts of the contributions themselves and restricted the right to reimbursement of contribution credits, from June 4, 2024. However, through Declaratory Act of the President of the Board of the National Congress nº 36/2024, published on 12/6, these restrictions were rejected, so that they are no longer valid and effective, since their edition.
Exceptional measures related to the state of calamity declared in Rio Grande do Sul
On 5/6, CGSN Ordinance No. 46 was published, which extends the due dates for taxes calculated in Simples Nacional to June 20th, in relation to the April calculation period, and to July 22nd, in relation to the May count.
ADI 7633 – Payroll exemption (CPRB) – suspension of the injunction
On 5/6, the Supreme Federal Court collegiate endorsed the decision that attributed prospective effect to the granting of the initial injunction (issued on 25/04), which had recognized the unconstitutionality of Law No. 14,784/2023, in order to suspend for 60 days the effects of said injunction. Regarding the topic, the Brazilian Federal Revenue published a note on its website recognizing that the CPRB remains in effect until the outcome of the action or, at least, for a period of 60 days, including for the April 2024 jurisdiction. In practical terms, the CPRB remains applicable according to current legislation (Law No. 14,784/2023), at least for the next 60 days.
CARF
IRPJ – Remittance of amounts abroad – Nature of payments to a legal entity located abroad as Royalties overlaps with formalization : the qualification of the expense paid as a royalty depends on the analysis and verification of the legal nature of the obligations assumed in the contract, and it must be pay attention to the material aspect of the expense incurred, regardless of the form undertaken. Thus, the materiality of the legal institute is what reveals the essence of its nature, which is why something that is not royalty cannot be considered a royalty, even in the face of tax and accounting records that wrongly classify it as such. Thus, whether or not remittances abroad are classified as royalties will depend on the analysis of the object of the contract signed with the legal entity located abroad, so that the principle of material truth and the material foundations of the analysis must override mere formal records. (Ruling no. 1201-006.308)
PIS/COFINS – Credit on freight of finished products prohibited : credits on expenses with freight of finished products between establishments of the same company are denied. In this case, the product that is ready and finished is not part of the production process, nor does it qualify as a sales operation to generate credits as inputs. Furthermore, the Superior Chamber of Tax Appeals allowed the use of credit for contributions on expenses incurred with the acquisition of PPE and raw materials. (Judgment No. 9303-015.028)
Tax Reform – Government sends Congress a Complementary Bill on the IBS Management Committee
On 4/6, the Government sent to the National Congress the "General Law of the Management Committee", a Complementary Bill (PLP nº 108/2024) which, among other points, regulates the institution of the Management Committee of the Tax on Goods and Services, the distribution of the proceeds from its collection and the administrative litigation related to said tax, in addition to rules relating to the ITCMD, in accordance with the provisions of Constitutional Amendment No. 132/2023.
ICMS/PR – Paraná removes items from the ICMS tax substitution regime
On 5/6, Decree No. 6,048 was published, through which the State of Paraná removed several items from the list of products subject to the ICMS tax substitution regime, including products from the stationery segments, cleaning materials, household artifacts, plastics and pharmaceutical products, except medicines.
ICMS/SP – Adjusted the criteria for simplified appropriation of accumulated ICMS credits by taxpayers covered by “Nos Compliance”
On 3/6, SER Ordinance No. 37 was published, changing the provisions relating to the simplified procedure for the appropriation and use of accumulated credit, through the e-CredAc system, by taxpayers qualified in the "Nos conformes" program. According to the aforementioned Ordinance, the simplified procedure will take into account the taxpayer's classification in categories "A+", "A" or "B" in the 12 months of the most recent classifications made available by Sefaz/SP to the taxpayer at the time of the analysis carried out by oversight.
Responses to SEFAZ/SP Queries
ICMS – Acquisition of property intended for fixed assets – Sale of the asset acquired before one year has passed since acquisition : only those whose expectation of remaining in the establishment performing the function of the asset “in the production or supply of goods” can be classified as property, fixed assets or services, for rent to others, or for administrative purposes” is longer than one period. A taxpayer is any person, natural or legal, who carries out, regularly or in a volume that characterizes commercial purposes, operations involving the circulation of goods or the provision of interstate and intermunicipal transport and communication services. If the habituality and volume that characterizes commercial purposes are absent, the sale of the asset not included in the taxpayer's operational activity and acquired with the expectation of use for more than one period, before the end of this period, will not constitute an ICMS taxable event ( RC 29643 /2024 ).
ICMS – General Warehouse – Packaging of finished products in drums to facilitate transportation – Industrialization : in general, to constitute an ISS taxable event, the service provided must be listed in the service list attached to Complementary Law No. 116/2003 and be carried out on goods (not merchandise) belonging to the end user or consumer. The affixing of packaging is not considered industrialization when it is intended for the mere transportation of goods (art. 4, I, “d”, of RICMS/2000). Any packaging process, aimed only at facilitating the transportation and handling of products, does not disqualify the activity as storage. Consequently, any inputs used in this process do not generate the right to tax credit ( RC 29447/2024 ).
ISS/SP Query Solutions
SF/DEJUG Consultation Solution nº 6 : entities that enjoy the immunity resulting from art. 150, VI, of the Federal Constitution, established in this municipality, are required to issue an Electronic Services Invoice – NFS-e or other document required by the Administration, the use of which is provided for in regulation or authorized by special regime. If the contracted company does not present the tax document required by the legislation of the municipality of São Paulo, as well as does not prove its immunity status, the consultant must, as service provider, withhold and pay the ISS due, in accordance with the terms of the provided for in arts. 7th, § 1st, I and II; 10, IV, and § 1, of Law No. 13,701/2003.
