A specific point of the Special Tax Regularization Program (PERT), instituted by Provisional Presidential Decree No. 783, of May 31, 2017 ("MP"), has been questioned by some companies and will in many cases be essential in reaching a decision on whether to join the program. It is a reduction of the initiation fee from 20% to 7.5% offered in some situations.
As was the case in the installments that were established in Law No. 12,996/14 (Refis da Copa) and Provisional Presidential Decree No. 651/14, later converted into Law No. 13,043/14 (settlement of balance of active installment payments), the PERT conditions many of its benefits on the payment of a initiation fee (toll) in the amount of 20% of the amount of the consolidated debt, without reductions (a requirement that, in practice, can make joining the program financially unfeasible).
In some cases, for debtors with "total debt" equal to or less than R$ 15 million (without reductions), the MP assures a reduction in the initiation fee from 20% to 7.5%, per the terms of the first paragraphs of Articles 2 and 3. However, there are questions about exactly which debtors can use this lower initiation fee percentage.
We have noted at least four possible interpretations for the rule:
- For debtors with general tax debts in an amount equal to or less than R$ 15 million: the amount will be ascertained based on the sum of the debts contained in the tax status report (current account) of individuals and legal entities.
- For debtors with tax debts payable in an amount equal to or less than R$ 15 million: the amount will be ascertained based on the sum of the unsecured debts or debts with no suspended enforcement found in the tax status report (current account) of individuals and legal entities.
- For debtors with tax debts consolidated in the PERT in an amount equal to or less than R$ 15 million: the amount will be ascertained based on the sum of the debts included in the installment program established by the MP.
- For debtors with tax debts consolidated in the PERT modality in an amount equal to or less than R$ 15 million: the amount will be ascertained based on the sum of the debts included in the installment program modality established by the MP, that is, up to R$ 15 million for debts administered by the Brazilian Federal Revenue Service and up to R$ 15 million for debts administered by the Attorney-General of the National Treasury.
In the Explanatory Memorandum pertaining to the MP, it is indicated that the PERT grants differentiated treatment for taxpayers with debts of less than R$ 15 million, a fact that may lead to a more comprehensive interpretation with respect to these debts. However, it does not appear to us that the Explanatory Memorandum is sufficiently clear in this regard, in addition to its leaving doubts open, even in a broader interpretation, with respect to the computation of non-chargeable debts.
On the other hand, the internal structure of the wording of the first paragraphs of Articles 2 and 3 of the MP, a rule put for all intents and purposes, governs the subject by taking the “modalities" as a starting point, which ends up associating the notion of the total debt to these subsets of debts.
It is expected that the issue will be clarified when the PERT regulations are issued by the Brazilian Federal Revenue Service and by the Attorney-General of the National Treasury. These agencies must regulate the MP by June 30, 2017, without prejudice to any questioning as to its legality, if restrictions are established that were not provided for in the MP.
In our view, it is strongly recommended that those interested in joining the program simulate scenarios and conduct an in-depth analysis of their tax and financial situation in order to develop the best debt structure that should be regularized under the PERT.
