Angelo Francisco Barrionuevo Ambrizzi
Lawyer at Marcos Martins Advogados
The Brazilian Federal Revenue Service has opened public consultation No. 7/2018, which deals with a Normative Ruling that expands the possibilities of holding partners liable for tax debts.
The draft of the Normative Instruction that the agency intends to publish is ready and suggestions for changes to the wording of the rule are being accepted until December 6, 2018, which still has no certain date for implementation.
Currently, the procedure for holding third parties liable for tax debts is laid down in RFB Ordinance No. 2,284/2010, which provides for the inclusion of partners by the tax auditor only at the time of drawing up the infraction notices.
According to the new Normative Instruction that the Revenue Office intends to publish, third parties could be held liable for taxes at four other times: 1) when compensations are not approved; 2) in the course of the administrative process, before the first instance judgment; 3) after the final decision of the administrative process; 4) for tax credits declared and not paid.
The hypothesis of including partners for declared and unpaid debts is noteworthy, since the Superior Court of Justice has already established the understanding, through Precedent No. 430, that the mere default of the tax obligation does not, in itself, generate the liability of the managing partner.
Although the draft of the Normative Instruction states that the tax liability of third parties presupposes due justification on the part of the tax authorities, it is difficult to predict in which cases, and under what arguments, the agency will start to hold partners liable for debts declared and not paid.
Another problem with the text of the draft is that the appeal, in cases of declared and unpaid debts, does not have suspensive effect, which means that the partner’s debt will be charged even if he is arguing against being held liable, in addition to the fact that it will be judged by the Internal Revenue Service itself, and not by the CARF, where the taxpayer might have a better chance of success, as it is a court made up of representatives of the tax authorities and taxpayers.
It is therefore of the utmost importance to adopt administrative and possibly judicial legal measures to challenge this form of liability, should it be implemented as intended by the IRS, in order to preserve the interests and assets of the partners.
In this context, Marcos Martins Advogados Associados puts its Tax Law team at the disposal of any interested parties to clarify doubts about these new forms of tax liability that are likely to be approved soon.
