No matter the decision of Minister Alexandre de Moraes, the Federal Supreme Court (STF), on Tuesday (15): companies are already preparing to appeal to the court’s increase in tax on financial operations (IOF), proposed by the government.
Moraes promotes the first reconciliation meeting between Legislative and Executive on the impasse of IOF. The government has increased tax rates and the legislature suspended the decision through a legislative decree, claiming that the executive uses a regulatory tax to increase the collection. Disagreeing, the Executive turned to the Supreme, who will now give the final word about the legality of the collection.
The center of the discussion is about whether the government can use the IOF in a collection way or if it goes beyond the function of the tax, as the legislature claims. By announcing the tax increase, the economic team reported that it was expected to raise $ 20 billion this year, which would help to close the accounts. With the resistance of the private sector, the decree was changed. But still, the expectation of collection was $ 12 billion.
Companies action against the measure can disrupt the government’s plans in tax collection.
In an interview with Estadãothe number 2 of the farm, Dario Durigan, said that the government’s goal is regulatory and that the collection was a secondary consequence – the thesis that the government will defend in the court.
Dealings
Last week, party leaders of the House and Senate signaled a road according to which they accepted an increase in IOF since the government reduced taxation, making clear the merely regulatory intention. This Monday, 14, the head of the Civil House, Rui Costa, made a statement suggesting that the government is not open to agreements.
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Whether the decision of the pro-government or pro-legislative STF, tax lawyers in the service of the private sector are already prepared to appeal to court on behalf of companies of the most varied sectors. “Regardless of the final slip, it is up to judicial measure in both cases,” says Taxist Menndel Macedo of Menndel and Melo Associados.
He states that if the government’s thesis is accepted, that the increase in IOF is constitutional, there will be a series of actions questioning the collection of tax on “risk risk” operations. These operations are very common between companies and their suppliers and consist of anticipating payments to suppliers. To date, such operations were not characterized as credit transactions and therefore did not collect the tax.
Generating fact
“The executive tried to push through a decree a new generating fact, a new constitution of IOF incidence on the draweed risk. But, to institute a tribute and a generating fact, it is necessary a complementary or ordinary law, it cannot do it by decree,” says Menndel.
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According to him, each company affected by the taxation may appeal to the court claiming that there was deviation in the principle of strict legality and in the competence of the executive by stipulating taxation.
Mattos Filhos Advogados’s tax partner Eduardo Melman Katz has the same opinion and evaluates that the government should bet on a higher reduction in the risk of the risk of risk to discourage litigation – the farm has already retreated to the first decree, lowering taxation after strong pressure from the financial sector.
“Although the result of the negotiation (between government and legislature) is to reduce the load on the drawn risk, there is a tendency for companies to go to court claiming that the collection could not have come by decree.”
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According to Katz, retail and all industrial branches, from chemist to food, use the payment modality to suppliers and are affected by taxation. “The practice of anticipation of receivables is common in the market and is very widespread.”
Many companies have already entered court questioning taxation, but there should be a new wave after the STF’s final decision, the two lawyers foresee. This is because the taxation is currently paralyzed by STF’s decision and thus there is no harmful effect to prove. But as soon as the collection again, companies must appeal individually in the first instance of the Federal Court against the IOF.
The second hypothesis is the Supreme Court to declare unconstitutional the presidential decree that raised the IOF, which is not the base scenario of the taxpayers. Still, it is subject to appeal to recover what was paid the most during the validity of the measure. As showed the Estadãothe government raised R $ 2 billion with tax increase before the Supreme freezes the charge.
