Fábio Bernardo
Lawyer at Marcos Martins Advogados
The Special Regime for the Reintegration of Tax Values for Exporting Companies (REINTEGRA) was originally created by Law No. 12,546/11, with the aim of reintegrating values referring to residual tax costs existing in the production chains of exporting companies.
The scheme is part of a package of benefits instituted by the Federal Government called the “Greater Brazil Plan”, with the aim of sustaining the country’s economic growth and bringing it out of the international crisis, and one of the guidelines of the Greater Brazil Plan is the exemption of exports.
In this context, REINTEGRA was initially to apply to exports made until December 2012. The deadline was later extended, followed by further extensions, and the regime is currently governed by articles 21 to 29 of Law No. 13,043/14, with no final deadline set.
The legislation in force allows taxpayers to calculate PIS/COFINS credits on their operations, by applying a rate of up to 3% (three percent) on export revenues. This is what articles 21 and 22 of Law 13.043/14 inform and authorize.
It is, therefore, a tax exemption granted in general to all exporters, in the context of a Federal Government plan aimed at developing the country’s economy.
Since its creation, exporting taxpayers have always been able to use REINTEGRA credits without any restrictions. However, in mid-April 2015, the Federal Revenue Service began barring the transmission of requests for reimbursement and offsetting of REINTEGRA credits for taxpayers in an irregular situation with the tax authorities, with supposed legal support in article 60 of Law No. 9,069/95, which reads as follows:
Art. 60. The granting or recognition of any tax incentive or benefit relating to taxes and contributions administered by the Federal Revenue Office is conditional on proof by the taxpayer, whether an individual or a legal entity, that federal taxes and contributions have been paid.
This requirement is illegal for three reasons:
a) there is no express requirement in the REINTEGRA legislation for fiscal regularity in order to take advantage of the credits;
b) REINTEGRA legislation allows for the offsetting of debts owed by the taxpayer;
c) the provision contained in article 60 of Law 9.069/95 does not apply to tax benefits granted on a general basis.
After analyzing the legislation dealing with REINTEGRA, it can be seen that at no time did the legislator require the presentation of a CND in order to use the credits.
This requirement is not included in Law No. 13,043/14, nor in the Reintegra Regulation (Decree No. 8,415/2015), nor even in RFB Normative Instruction No. 1,300/2012 (articles 34 to 35).
If the legislator had wanted to require the taxpayer to present a CND in order to use REINTEGRA credits, he would have used the same and correct system of expressly requiring this, just as he did in relation to the Special Incentive Regime for the Development of Infrastructure – REIDI and the Tax Regime to Encourage the Modernization and Expansion of the Port Structure – REPORTO.
The legislation for these two special tax incentive schemes (Laws 11.488/07 and 11.033/04) expressly requires the taxpayer to present a CND in order to benefit from the tax breaks granted, which is not the case with REINTEGRA.
And the absence of this requirement is justified by the economic reasons that underpin the Brasil Maior Plan, since requiring the CND would certainly drastically reduce the incentive to export, which is so important for the country’s growth and development.
As if that weren’t enough, the systematic interpretation of the REINTEGRA legislation allows us to conclude, with even greater certainty, that the legislator did not want to make the enjoyment of the regime conditional on the taxpayer’s fiscal regularity.
This is because, according to the REINTEGRA legislation, the credits calculated by the taxpayer at the end of the calendar quarter can be used for two purposes: 1 – reimbursement in kind or 2 – offsetting, the latter of which can be done with debts of their own, whether due or not.
If the law allows taxpayers to offset overdue debts, how can it, at the same time, require tax compliance in order to use the credits? If the taxpayer has overdue tax debts, he obviously won’t be in good standing with the tax authorities and won’t have a negative tax certificate to meet the undue demands of the IRS.
In this vein, it would be a total nonsense, to put it mildly, to allow the offsetting of overdue debts and at the same time require the taxpayer to present a CND in order to offset these debts.
Finally, the very interpretation of article 60 of Law No. 9,069/95, used as the basis for the Federal Revenue Service’s requirement for a CND, allows us to conclude that it does not apply to REINTEGRA. This is because, when the article in question talks about “granting” and “recognizing” incentives and benefits, it is referring to incentives or tax benefits granted on an individual basis to the taxpayer.
In other words, benefits that depend on prior authorization and a declaratory administrative act granting them, as is the case with REIDI and REPORTO, among others.
For these incentives/benefits, the taxpayer must meet a series of legal requirements and qualify in advance, depending on an administrative act that recognizes/grants the tax favor.
However, in the case of REINTEGRA, the legislation grants a credit to be reimbursed/compensated on a general basis, to any and all companies exporting goods abroad, without the need for any formal recognition or concession on the part of the Brazilian Federal Revenue Service. It is enough for the taxpayer to export goods abroad to be entitled to the credits.
Interpreting article 60 of Law No. 9,069/95 as broadly as the IRS wants to, the taxpayer would be required to obtain a CND in order to enjoy any and all tax exemptions, such as exemptions, reductions in tax rates and tax calculation bases, presumed credits, suspensions, deferrals, payroll exemptions, which is clearly absurd.
Therefore, taxpayers who feel aggrieved by the unreasonable requirement for a tax clearance certificate can file a lawsuit to take advantage of the credits granted to them by the REINTEGRA legislation, and the Marcos Martins Advogados Associados law firm is able to advise taxpayers who find themselves in this situation.
