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Date: 17 de February de 2023
Posted by: CPDMA Team

Companies in crisis and the tax and recuperation aspects of the transaction

Imagem da Dra. Bruna Nunes de Quadros que assina artigo sobre empresas em crise.

A atividade empresarial é complexa e apresenta uma série de dificuldades para quem a exerce. Essas adversidades, quando assentadas com maior veemência podem culminar em crise. A evasão deste cenário de desequilíbrio econômico é de interesse de ordem pública e social, visto que as sociedades empresárias são instrumentos de geração de insumos e renda e, assim, exercem um significativo e determinante papel no meio social. 

Based on this, the Law 11.101/05 provides for the institute of judicial rehabilitation, which aims to enable the overcoming of the economic-financial crisis and the preservation of the company. The judicial rehabilitation is not limited to the mere satisfaction of creditors, the institute intends, mainly, to preserve the production source and safeguard the generation of jobs and income. Currently, it is the most effective alternative for the reversibility of the crisis scenario, since the company, with the protection of the Judiciary, presents a series of measures provided and organized in a recovery plan, which aim at the economic and financial rebalancing of the business. 

Companies that go through a crisis and resort to the institution of judicial rehabilitation, as a rule, in addition to the debts with other creditors, are having difficulties to comply with tax debts. However, since tax debts are not subject to the effects of judicial rehabilitation, a scenario of insecurity and tension has arisen, since at the same time tax debts are not subject to the effects of judicial rehabilitation, the effectiveness of the process depends to a great extent on the concentration of jurisdiction to decide on acts that may significantly impact the debtor's assets (and ability to comply with the plan) in the court where the rehabilitation is being processed. 

In 2022, the Judicial Reorganization Law underwent some changes, and among them was the creation of more efficient mechanisms for the payment of tax credits. A Law 10.522/02 now provides, for example, for an increase in the number of installments for settlement of the ordinary installment plan and the specific procedural legal transaction for companies under judicial reorganization, in addition to other measures, among which, without a doubt, tax transactions were the most prominent. 

The tax transaction for companies under judicial reorganization is regulated by Law 10,522/02 and by PGFN Administrative Rule no. 2.382/2021The law provides, for companies under judicial reorganization, the possibility of settling federal taxes in 120 monthly installments, in addition to discounts on the amount of fines and interest. It also provides for the possibility of using tax losses and the negative basis of the CSLL or other own credits, up to the limit of 30% of the amount due, in which case the debt balance, after offsetting, may be paid in up to 84 monthly installments. 

All debts must be included in the transaction, with the exception of those that are subject to judicial discussion, which may be excluded upon presentation of a guarantee (which cannot be included in the judicial reorganization plan), or upon presentation of a court decision that determines the suspension of the respective enforceability. If the taxpayer is interested in including these debts in the installment plan, he must prove that he has given up the defenses filed, both in the administrative and judicial spheres. 

The individual transaction begins with the taxpayer submitting a proposal to the Attorney General of the National Treasury, which must include details of the tax debt, the cash flow projection, as well as the assumptions for restructuring the debts.

At this point, it is important to highlight the causes of exclusion from the tax transaction, notably the lack of payment of 06 consecutive or 09 alternating installments, the proof of asset stripping acts and the decree of bankruptcy. On this point, it should be noted that the rescission of the transaction, in addition to the possibility of being cause for the resumption of the collection of debts with respective consequences (seizure of assets, etc.), allows the National Treasury to apply for conversion of the judicial reorganization into bankruptcy (even if the tax credit is not subject to the effects of reorganization or bankruptcy proceedings). 

From the exhibits, it is evident that the individual transaction has more advantages than the adhesion transaction, since it allows (at least in theory) to adjust the amortization flow according to the effective payment capacity of the debtor. The debtor may, for instance, propose a progressive amortization flow, starting with lower installments that gradually increase, in such a way that the tax liabilities are satisfied in compliance with the judicial reorganization plan.

The greater flexibility in the treatment of tax debts intended with the institution of the individual transaction makes the Public Treasury less alien to the reorganization process, assuming the sharing of economic and financial assumptions between the judicial reorganization plan and the tax debt restructuring measures.

By Bruna Nunes de Quadros
Tax Law | CPDMA Team

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