The Tax Transaction legal institute is predicted in articles 156 and 171 of the Brazilian National Tax Code (CTN), which states that the taxpayer and the Federal Revenue could initiate a Tax Transaction proceeding that, through mutual concessions, will lead to the settlement of disputes and consequent extinguishment of the tax credit.
However, until the publication of the Law n. 13.988/2020 (known as the ‘Legal Taxpayer Law’), there was no legal regulation concerning the tax transaction between the public entities and the taxpayers.
With the advent of this legislation, it was established, at the federal level, the requirements and conditions for the Federal Government, its autarchies and foundations to conduct litigation settlements related to the collection of tax or non-tax credits by the Public Treasury.
In this regard, in the last few months, the Federal Revenue has published several Ordinances to address the issue and to establish the necessary conditions to implement the tax transaction in relation to debts currently in collection through administrative proceedings at federal level.
Recently, on November 22, 2022, the Ordinance RBF n. 247/2022 was published, and brought new regulations to the subject, revoking the rules contained in Ordinance RFB n. 208/2022.
As of the publication of this new ordinance, new requirements, conditions, and procedures have been introduced for the Tax Transaction. For further elucidation, we highlight the following changes:
- Definition of specific topics and administrative appeals capable of initiating tax administrative proceedings;
- Possibility of initiating a Tax Transaction proceeding involving debts related to not declared offsetting of tax liabilities, cancellation or non-recognition ex-officio of amended tax declarations, and installment plans that are in litigation prior to their exclusion, as provided for in Theme 668 of the Supreme Court (which held that art. 1 of Resolution CG/REFIS n. 20/2001 is unconstitutional, in that it eliminated the notification of the legal entity opting for REFIS, prior to the act of exclusion); and
- The impossibility of transacting while awaiting an administrative impugnation, appeal, or legal claim for transactions in general, except for low-value litigation transactions.
Another relevant point brought by this Ordinance concerns the moment that the transacted debt will be considered suspended. According to the new Ordinance, the suspension of administrative proceedings – a necessary consequence of adhesion to the Tax Transaction – happens with the acceptance of the agreement, in contrast to the revoked Ordinance (RFB Ordinance No. 208/2022), which stated that the debt is considered suspended with the transaction request.
In addition, regarding operational issues, this Ordinance brought the obligation to join the Electronic Tax Domicile during the entire period of the transaction and the access allowance of tax auditors to the Digital Accounting Bookkeeping for transaction purposes.
In conclusion, RFB Ordinance No. 247/2022 issued by the Federal Revenue Service tried to clarify certain issues that, until then, through previous regulations, created confusion and doubts for taxpayers.
Our tax team is available to provide more information and guidance on these and other topics.
Co-authored by Thais Ribeiro Bernardes Casado and Guilherme Rodrigues de Matos Nascimento.
