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Date: March 18, 2021
Posted by: CPDMA Team

Congress overturns presidential vetoes to Law 14,112/20 and rehydrates the reform of the Business Recovery Law

The Presidency of the Republic sanctioned Law 14.112/20, which reformed Law 11.101/05, but with vetoes to important provisions - especially with regard to tax matters.

On yesterday's date (03/17), however, such vetoes were overturned by Congress (with the exception of two provisions - one that extended the suspension of labor executions to solidary debtors and another that dealt with the Rural Product Certificate), thus restoring good part of what was good about legislative reform.

Fundamentally, Law 11.101/05 is now in force with rules that:

(i) Make the rules for non-succession of the purchaser of the debtor's production units more consistent and secure, explaining that such protection covers "obligations of any nature, including those of an environmental, regulatory, administrative, criminal, anti-corruption, tax and labor nature ".

(ii) Remove the limitation of tax losses that can be used for deduction from the calculation basis of the capital gain resulting from the disposal of assets in the recovery process;

(iii) Exclude from the PIS/COFINS tax base the income arising from the discount and exclude the percentage limitation of the gain resulting from the discount in the calculation of IR and CSLL (reduction of adjusted net income by exclusion and negative tax base);

(iv) Make the "expenses corresponding to the obligations assumed in the judicial reorganization plan" deductible from the taxable income and CSLL basis;

(v) They expressly admit the filing of judicial/extrajudicial recovery by medical cooperatives.

These rules, now returned to Law 14,112/20 and, consequently, included in Law 11,101/05, represent an important step towards providing legal certainty to the purchasers of assets in judicial recovery processes (generating value for all those involved) and, within the scope of tax, eliminate the paradoxical tax burden resulting from a debt restructuring in which, in the end, everyone gives in and everyone loses, to some extent. 

The overturning of vetoes, therefore, should be celebrated.

Source: Daniel Burchardt Piccoli, lawyer and partner at Cesar Peres Dulac Müller.

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