After being stalled for several months in Congress, the Contomaz debtors’ bill is back on the agenda with force following operations carried out by the Federal Revenue Service (RF) and oversight bodies that revealed tax evasion, money laundering schemes and the use of shell companies by criminal organizations.
Now the government and the economic team are seeking to pass the Taxpayer Defense Law, which includes the permanent debtor, until 2025, arguing that the law could be an important mechanism in combating organized crime.
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What is a debtor Kontomaz?
The procedure currently being processed in the National Congress defines corporate debtors who repeatedly and unjustifiably fail to pay taxes, using default as part of their operations.
At the federal level, the rule states that a company is considered a going concern if it has unexplained debt exceeding R$15 million, and this debt corresponds to more than 100% of its known assets.
For states and municipalities, the standard falls on those whose debts accumulate repeatedly, for at least four consecutive accounting periods or six alternating periods within a 12-month period, also without justification. If the federated unit does not create its own rule, the federated rule applies.
Partner in the tax department at Felsberg Advogados, Rodrigo Prado, explained that the rule is a hardening against taxpayers, and needs to be well discussed so that companies described as good payers are not penalized.
According to him, the issue needs to be discussed mainly when dealing with the period of classification as a permanent debtor, which is 4 or 6 months. “This measure forces taxpayers to pay taxes,” he said.
This is because, for any person classified as a permanent debtor, several penalties are expected, such as the prohibition of obtaining tax benefits, the prohibition of participating in tenders or contracts with the public administration, and the prohibition of requesting judicial recovery.
Furthermore, they may be deemed invalid for taxpayer registration, which has serious implications, such as credit restrictions and operational difficulties.
ritual
The project also establishes a simplified procedure for administrative litigation in these cases, that is, the processes of analyzing appeals against tax assessments or tax accusations will be faster, which aims to accelerate accountability.
Rodrigo estimated that the debt process currently takes about 5 years to complete, but according to him, if the project is approved, this period will need to be reduced.
On the other hand, the text provides incentives to good payers, that is, companies that pay their taxes regularly. For these companies, the benefits are: superior service, lighter treatment when requesting guarantees, and priority in analyzing tax refund or compensation requests.
Furthermore, the project foresees the creation of three tax compliance programs within the Union, administered by the Federal Revenue Service, called Confia, Sintonia and OEA. These programs offer benefits to those who maintain tax regularity.
Among the incentives is a discount of up to 3% on the cash payment of social contribution on net profit (CSLL), up to R$ 1 million in the third year of payment.
Approval is a government priority
The resumption of the agenda comes in a context in which recent operations carried out by the Revenue Service and the Federal Police revealed sophisticated money evasion and laundering schemes, using shell companies and complex financial schemes and flows.
There is increasing pressure from the government for Congress to approve the project as a structural measure to combat this type of fraud. Moreover, the project is now being urgently processed in the House of Representatives, adding political weight to a vote scheduled for 2025.
For the rapporteur of the text in the Federal Senate, Ephraim Filho (Uniao-PB), the proposal clearly separates those who suffer from occasional default or financial difficulties and those who organize their business with systematic default, with the aim of defrauding the tax authorities and operating in unfair competition.
Federal revenue operations
- The Federal Revenue Service, in partnership with the Federal Police, carried out a series of anti-money laundering operations, the most famous of which is Operation Carbono Okulto;
- The operation targeted fintech companies and financial institutions used to launder money from Primeiro Comando da Capital (PCC), in São Paulo;
- This was the first time that an anti-money laundering investigation reached the country’s financial center, the companies located on Avenida Faria Lima.
- In addition, similar operations have been launched against gas stations used by organized crime to launder money.
Contact with the fight against organized crime
The measure was designed with the express aim of targeting not only tax evaders, but also shell companies used by criminal factions to launder money, transfer resources and support illicit activities.
To try to prevent this type of entity from being used as a front, the project assigns the National Agency for Petroleum, Natural Gas and Biofuels the responsibility of setting minimum capital values, requiring proof of the legitimacy of resources and identifying the actual owners of companies, making it difficult to use “absurdity” to hide true ownership.
In addition, fintech companies and payment institutions will also be subject to stricter compliance rules, to prevent them from becoming a vehicle for money laundering or facilitating illicit money movements.
If approved, the law should change the behavior of companies that use structural deficits as a business model. There may be a real impact on market concentration, with a reduction in unfair competition.