Lawsuit opportunity for the suspension of payment of federal taxes

Lawsuit opportunity for the suspension of payment of federal taxes

Covid-19 pandemia is creating a massive economic instability in Brazil especially with the determination of a lockdown on several sectors of the economy.

For such scenarios former Finance Minister Guido Mantega has edited in 2012 the Ordinance MF No. 12/2012 wich allows an extenxion of 3 months for the payment of federal taxes for companies domiciled in counties within a States decree recognizing the state of emergency.

According to the Ordinance, Attorney-General of the National Treasury and the Federal Revenue must issue an act indicating the counties included in the state of emergency.

Regarding the accessory obligations of federal taxes, Normative Instruction RFB No. 1.243/2012 also states the extention of the deadline of tax filling for the same reason.

It is known that many States of the Federation as Rio de Janeiro, Minas Gerais and São Paulo have already decreed the state of emergency. Therefore, it is possible to defend the immediate application of the referred Ordinance (extension of the deadline for payment of federal taxes) and the Normative Instruction (accessory obligations), even in the absence of an act by the Federal Revenue or Attorney-General’s Office indicating counties in that situation, since taxpayer cannot be at the mercy of public entities morosity.

It is worth to highlight that recently the Management Committee of Simples Nacional published Resolution No.152, of 03/18/2020 extending the due date of federal taxes in 6 (six) months. Therefore, the inertia of the Federal Revenue and Office of Attoney-General’s of the National Treasury in expressly stating the extension authorized by Ordinance MF No. 12/2012 represents an offense to the principle of isonomy, insofar as it gives a more harmful treatment to companies equally affected and impacted by  the COVID- 19.

In addition, due to the perspective of continuity of the state of emergency, it is still possible to defend that this postponement should be applied to taxpayers during the COVID-19 scenario, that is, while the state of emergency prevails.

To guarantee the right of postponing the payment of federal taxes by companies in the country it is necessary a Writ of Prevention with an express request in this sense, with high chances of success - including as for the granting of an injunction - while there is no regulation of the matter by the Federal Revenue Service and/or the Office of the Attorney-General’s of the National Treasury.

Azevedo Sette Advogados’ Tax Litigation team is available to provide further clarifications on the subject, as well as to assist you with the necessary measures.