The new provisional measure-which raises the tax on various operations,-announced by the federal government on Wednesday (11) worries the market. This is because the common practice of anticipation of receivables, seen as essential in the routine of many companies, can get more expensive and weigh on the accounts.
Although the government has partially retreated, removing the fixed charge of 0.95% initially foreseen, the maintenance of the daily rate on these operations caught the attention of experts heard by the Infomoneywhich point out direct impacts on the capital’s cost of capital and question the legality of the collection.
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What is the drawl risk?
The drawn risk is an operation through which a buying company asks a bank to anticipate the payment of its suppliers. When the agreed deadline arrives, the company pays the bank with interest. This practice is widely used to give both large companies and small suppliers breath.
The initial government proposal provided that these operations would be taxed with a fixed rate of 0.95% plus 0.0082% per day. With the new decree, the government retreated and maintained only daily charge, and reducing the fixed rate to 0.38% for conventional credit operations between legal entities. The official expectation is that the changes bring extra revenue between $ 6 billion and $ 7 billion in 2025.
Companies in the center of the impact
“Imagine a company that sells retail products and, instead of waiting 90 days to receive from your client, anticipates this value with the help of a financial institution, and these operations were treated as commercial and non -financial and now having an IOF incidence changing everything,” says Arthur Mendes Lobo, law lawyer Wambier, Yamasaki, Bevervanço & Lobo Advogados.
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According to him, the government may have advanced beyond constitutional limits in changing the concept of credit operation by decree, without legislative approval. “In tax matters, only the law can create or increase hypotheses of incidence of taxes. The decree may be questioned for violating strict legality and legal certainty.”
According to Alamy Candido, taxpayer and former Judge of the São Paulo Tax and Tax Court and partner of Cândido Martins and Cukier, the greatest impact of this measure falls on companies, as the drawee risk is widely used in the corporate market. “In addition, companies were already facing resistance from the IRS, which had been making it difficult to compensate for credits, but now there is also the expansion of taxation on essential operations for the day -to -day companies,” he says.
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For João Eduardo Diamantino, Diamantino Advogados Associados tax, MP can also limit companies access to the capital market. “By taxing papers such as LCA and CRA, previously exempt, and withdrawing the drawn risk, the measure removes investors from these securities, decreases credit supply and pressures interest. The result is a market more dependent on banks,” he says.
Dissatisfied and possible judicialization market
Despite the partial reduction of the rate, the productive sector remains unhappy. “The new decree eliminates the initial fixed cost of almost 1%, which relieves the cash of companies. But the daily IOF remains, which still represents an increase in operations that were not taxed before,” says Marcio Alabarce, partner of Canedo, Costa, Pereira and Alabarce Advogados.
The possibility of judicialization is also raised by Igor Nascimento Souza, Taxarista of Souza Okawa. “The government claims a collection purpose, but IOF is an extrafiscal tax, which should serve to control credit or consumption, not to raise. In addition, operations without co -application – when the company that sells the receivable does not maintain responsibility for payment – should not be framed as credit operations. The theme will certainly be discussed in the courts.”
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Wendell R. dos Santos, from LO Baptista Advogados, points out that the model of the risk risk is critical to the functioning of retail, providing immediate liquidity to suppliers and organization of payments for large buyers. “Even with the reduction, legal doubt remains: Risk operations without co -application may not fit as a credit for IOF purposes,” he says.
More impacts
Heitor Cesar Ribeiro, taxpayer of Gaia Silva Gaede Advogados, stresses that not all institutions involved in early receivable operations would be subject to IOF. “Securitizers, fidcs and payment institutions, which are not financial institutions, should not collect the tax,” he explains. In addition, Ribeiro recalls that the IRS had already pacified this understanding in 2016: without co -application of the assignor, the anticipation is considered a credit assignment, not a financing operation subject to IOF.
Lawyer Carlos Marcelo Gouveia, from Almeida Prado & Hoffmann, says that part of the sector already seeks to bar the measure in Congress or in court. “Companies and entities have already filed warrants, with some injunctions rejected so far. But the expectation is that the theme gains strength in the judiciary, especially for the argument that there is no credit operation, but a simple sale of receivables,” he says.
Morvan Meirelles Costa Junior, from Meirelles Costa Advogados, believes that the new writing of the decree was clear in framing the risk of the credit operation, which eliminates doubts for tax purposes. “Although the fixed rate has been removed for this type of operation, the daily rate remains and the impact will be passed on to the final cost of companies,” he explains.
Perspective
The market awaits the next steps of the National Congress, which may reject or modify the provisional measure. Meanwhile, companies and entities evaluate to bring the dispute to the courts, arguing that the anticipation of receivables without co -application does not constitute credit operation and, therefore, cannot be taxed by IOF.
The result of this clash can shape the credit cost to companies in the coming years, especially in tight margins and large volume of financed transactions.
