Normative Instruction (IN) RFB No. 1810/2018, published on June 14, governs tax offsetting. Notable is the unification of the legal regimes for tax offsetting (treasury and social security credits) with respect to legal entities that use the Digital Bookkeeping System for Tax, Social Security and Labor Obligations (e-Social) for the assessment of contributions.
Unified tax offsetting will be applicable only to legal entities that use e-Social for the assessment of the aforementioned contributions. Companies that use e-Social may even carry out cross offsetting (between social security or treasury credits and debits), subject to the restrictions imposed by the legislation arising from the transition between the regimes.
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The offsetting regime carried out through information in the GFIP will not be changed for legal entities that do not use e-Social.
The normative act also addresses the prohibitions arising from Law No. 13,670 of 2018, regarding the offsetting of estimated IRPJ (Corporate Income Tax) or CSLL (Social Contribution on Net Profit) debts, of amounts of family allowance and maternity allowance quotas, and of credits subject to a tax procedure.
With respect to the prohibition on offsetting debts relating to the monthly estimated payment of IRPJ and CSLL, it is noted that “unduly offset estimates generate a false negative tax balance which, in turn, is also unduly offset against other debts, including other estimates, resulting in the endless non-payment of the tax credit owed by the taxpayer” — Statement of Reasons No. 00107/2017 MF for Bill No. 8,456 of 2017.
In relation to the prohibition on offsetting credits subject to a tax procedure, “the aim is to eliminate the possibility of extinguishing tax debts through the use of credits when, in a risk analysis, indications of unfoundedness are identified and the document submitted by the taxpayer is under a tax procedure for the analysis and recognition of the credit right” — Statement of Reasons No. 00107/2017 MF for Bill No. 8,456 of 2017.
The prohibition applies only to a tax procedure distributed through a Tax Procedure Distribution Term (TDPF), not applying to tax procedures for the analysis of refund, reimbursement, recovery or offsetting that dispense with the issuance of a TDPF.
It is further established that the offsetting of social security contribution credit arising from a judicial action, through an offsetting declaration, may be carried out only after the prior qualification of the credit, with its waiver being maintained only for offsetting in the GFIP.
Source: Federal Revenue Service
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