August 05, 2022

PGFN regulates the tax settlement using tax losses and negative basis of CSLL, among other measures

On 08/01/2022, Ordinance PGFN/ME No. 6.757 was published, to regulate the settlement of Federal Government and FGTS credits.

The ordinance determines (i) the criteria for measuring the degree of recoverability of debts; (ii) the parameters of the individual transaction acceptance; (iii) the granting of discounts related to Public Treasury credits; and (iv) the procedures, requirements and conditions to carry out the settlement of debts enrolled in federal overdue tax liability and from the FGTS, charged by the Federal Attorney General's Office (PGFN). 

Among the concessions provided in the ordinance, it is worth mentioning the possibility of using tax loss credits and CSLL negative calculation basis. However, such measure is exceptional and demands the demonstration of its indispensability for the regularization plan, being prohibited in settlements through adhesion and individual simplified settlement.

Besides, such possibility is only applicable (i) to irrecoverable or hard to recover credits; (ii) for the amortization of interests, penalties and legal charges (in the case of  a legal entity under judicial reorganization, it is also possible to amortize the principal); and (iii) if credits in disfavor of the Federal Government are classified as non-existent or used up, recognized by a final judicial decision, or by means of federal writs of payment issued in favor of the taxpayer.

It is also important to highlight that the ordinance brought changes in the regulation of individual settlements, with the main changes being: (i) the reduction of the minimum amount of debts to R$10 million and to R$1 million, if suspended by judicial decision or guaranteed by attachment, letter of guarantee or insurance-guarantee; and (ii) the possibility of individual simplified settlement proposed by the debtor for debts between R$1 million and R$10 million.

Finally, it should be noted that the ordinance also regulates the use of taxpayer credits in disfavor of the Federal Government, recognized in final decision or in own or third-parties federal writs of payment, for the purpose of amortization or liquidation of transacted debit balance. 

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