Post by xyz3600 on Feb 24, 2024 23:16:05 GMT -8
According to the Revenue, the corporate operation of partial spin-off without economic purpose must also be disregarded in the refund, reimbursement or compensation. "The partial split, as long as it has an economic purpose, is a legal hypothesis of succession of the rights provided for in acts of corporate formalization, including credits arising from tax debts, including judicial ones with final and unappealable judgment, which become of the nature of the successor's own credits, if so determined by the spin-off acts, thus being valid for the request for refund and compensation with debts owed to the National Treasury", says the Revenue. Absence of Standard For Tax Law specialistAllan Fallet, partner at Amaral Veiga Advogados, the Revenue could not have made this determination in a consultation solution, because the law regulating the topic has not yet been published.
Therefore, the body exceeded its competence when determining the disregard of the spin-off operations. "The first point to be addressed is the absence of an effective general anti-avoidance rule, given the lack of regulation in article 116, sole paragraph, of the CTN, constituting a thorough procedure for the tax authorities to disregard the acts and businesses carried out by companies , such disregard Middle East Mobile Number List could not occur", he says. In other words, according to Fallet, until the procedure for disregarding legal transactions carried out is established in ordinary law, the Revenue's understanding is inapplicable. "The second point is that the imposition of a “negotiating purpose” does not find support in the Brazilian legal system, deriving from pure doctrinal construction, being merely the design of conformity between the taxpayers' purpose and the reason for the legal transaction carried out", he explains.
Lawyer Ricardo Maitto , partner in the Tax area at Rayes & Fagundes Advogados, explains that this is not the first time that the IRS has set this type of restriction, which has already been reflected in previous statements. " This restriction has no legal support. The 'economic purpose' of corporate reorganization can be exactly the optimization of the use of tax credits and the transfer of excess tax credits to companies in the same economic group. As long as the operation complies with the formalities of the law and there is no express legal or contractual prohibition, there is no restriction on the transfer of assets and liabilities of any nature, including those of a tax nature”, he states. Vitor Rodrigues , associate tax lawyer at Chenut Oliveira Santiago Advogados, says that the Revenue's position is "unfortunately" not surprising. "The interpretation, to the detriment of the taxpayer, is mistaken.
Therefore, the body exceeded its competence when determining the disregard of the spin-off operations. "The first point to be addressed is the absence of an effective general anti-avoidance rule, given the lack of regulation in article 116, sole paragraph, of the CTN, constituting a thorough procedure for the tax authorities to disregard the acts and businesses carried out by companies , such disregard Middle East Mobile Number List could not occur", he says. In other words, according to Fallet, until the procedure for disregarding legal transactions carried out is established in ordinary law, the Revenue's understanding is inapplicable. "The second point is that the imposition of a “negotiating purpose” does not find support in the Brazilian legal system, deriving from pure doctrinal construction, being merely the design of conformity between the taxpayers' purpose and the reason for the legal transaction carried out", he explains.
Lawyer Ricardo Maitto , partner in the Tax area at Rayes & Fagundes Advogados, explains that this is not the first time that the IRS has set this type of restriction, which has already been reflected in previous statements. " This restriction has no legal support. The 'economic purpose' of corporate reorganization can be exactly the optimization of the use of tax credits and the transfer of excess tax credits to companies in the same economic group. As long as the operation complies with the formalities of the law and there is no express legal or contractual prohibition, there is no restriction on the transfer of assets and liabilities of any nature, including those of a tax nature”, he states. Vitor Rodrigues , associate tax lawyer at Chenut Oliveira Santiago Advogados, says that the Revenue's position is "unfortunately" not surprising. "The interpretation, to the detriment of the taxpayer, is mistaken.