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Publications - 26/07/21

Brazilian Tax Authorities reinforces that the moment to levy income tax from companies that have favorable court decisions is the final and unappealable decision

The Brazilian Federal Revenue Service issued COSIT Solution on Divergence No. 92/2021, confirming that the moment to levy income tax (IRPJ and CSLL) from companies that have favorable court decisions is the final and unappealable decision (when there is no further appeal).

These understanding impacts, for example, companies that won the discussion regarding the exclusion of ICMS (VAT tax) on the calculation basis of PIS and COFINS.

This guideline can be questioned by taxpayers, since almost all favorable court decisions that are final and unappealable are illiquid, with no definition of the undue amount to be refunded. In order for taxation to occur, it is necessary to execute the court decision, through the issuance of a registered warrant (IOU issued by the judiciary branch); or through the administrative offsetting procedure, with the presentation of PER/DCOMP. Only at that moment happens the quantification of the undue payment.

Thus, taxpayers can file a lawsuit to ensure the taxation of the credit only at the time and to the extent that it is effectively offset, through the presentation of PER/DCOMP, since it is only at that moment that certainty, liquidity and availability are conferred to credits.