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Date: October 22, 2019
Posted by: CPDMA Team

Industry gets injunction before being assessed

The case was analyzed by the 7th TRF of the 1st Region.

An industry in the chemical sector anticipated and took the discussion on goodwill amortization directly to the Courts, even before being assessed by the Federal Revenue Service. The case was analyzed by the 7th Panel of the Federal Regional Court (TRF) of the 1st Region, based in Brasília, which granted an injunction to the manufacturer.

The decision suspends Income Tax (IRPJ) and CSLL debt that may be generated by goodwill calculated by Solenis do Brasil Química with the acquisition of the companies Quimatec and Locatec.

According to the lawsuit (no 1030649-96.2019.4.01.0000), in November 2015, the two companies were acquired for R$ 170 million. The goodwill recorded was R$ 107 million. For the operation, a loan was contracted with Solenis Netherlands, which was fully repaid. In December, the companies were merged into Solenis, which allowed the tax deduction of goodwill.

However, despite meeting the requirements to amortize the goodwill provided for by law (Article 20 of Decree-Law no. , the company claimed that it was not able to issue a protocol, before the Federal Revenue Service or in a notary's office, of the appraisal report of liquid assets within 13 months, whose obligation was introduced by Law 12,973 of 2014.

The report itself, according to the company's defense, was provided within the legal term, on June 29, 2016. There was only delay in registering the document in the notary, provided on July 30, 2018, adjusted by a supplementary report (of July 25, 2019), filed on August 7, 2019.

In the action, the company maintains that the issuance of the report in accordance with the legal requirements and its protocol before the start of any inspection procedure meets the purpose of the rule of ensuring knowledge of the operations and that this fact “cannot make the amortization of the IRPJ and of the CSLL, under penalty of violating the principle of legal certainty”.

He still argues in the lawsuit that the payment for the acquisitions was made in cash and that the operation actually took place. Finally, it stated that, without an injunction, it ran the risk of being assessed at R$ 37 million, which could be accompanied by the improper collection of interest on late payment and a qualified fine of up to 150% on the required taxes. In addition, it may suffer from a series of serious consequences, such as being obliged to offer a guarantee or to make a judicial deposit to maintain its full tax regularity.

When analyzing the process, the rapporteur, federal judge Ângela Catão, understood that the company filed a lawsuit to discuss and prove the facts, which will be reported through an expert examination. “So, at this moment, it would be unfeasible for the company to bear the burden of a high tax execution, which could impede the development of its activities”, says in the decision that protects Solenis from possible collection.

According to Rodrigo Perestrelo, manager of Solenis' legal department for Latin America, the decision brought “a very positive result, especially considering that there was no precedent on the matter under discussion”. Although unusual, the company's decision and strategy to anticipate the discussion in the judicial sphere even before it was inspected and assessed was based, according to Perestrelo, "in the sense of minimizing the risks potentially involved as much as possible".

As it is a relevant issue of significant amount, with a known intense history of inspections, an unfavorable jurisprudential scenario of the Administrative Council of Tax Appeals (Carf) and the risk of possible applications of qualified fines and other penalties, the company, says the lawyer, decided to be conservative and anticipate the discussion in the judicial sphere, without following the usual strategy and standard of tax administrative litigation.

For tax lawyer Maurício Faro, from BMA Advogados, the case is interesting because the company skipped the discussion in Carf to take it directly to justice, which has not been the path traditionally followed by taxpayers. In general, companies, he adds, expect to be eventually sued and then question the matter administratively. They appeal to the last instance of the Council, the Superior Chamber, which has decided in an unfavorable way, and only later they enter the Judiciary.

Source: Adriana Aguiar via Valor Econômico.

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