Manoel dos Santos, legal director of ABES – Brazilian Association of Software Companies
Law nº 14.195/21 was recently enacted, arising from MP 1040/21 authored by the Executive, solemnly proclaimed by the Federal Government as a norm aimed at “modernizing the national business environment” and contributing to the “post-pandemic economic recovery”, as it contemplates measures whose purposes would be to make it easier to do business in Brazil and to improve the country's position in the Doing Business ranking.
It is important to recognize some advances in the desired directions, such as the measures aimed at facilitating the opening of companies, the protection of minority shareholders, the facilitation of foreign trade, business reduction of bureaucracy, the transformation of individual limited liability companies into interpersonal limited companies , the elevation to the category of establishment, of the virtual places where the business activity is carried out, the authorization for corporations to issue common shares holding a plural vote, in addition to the creation of a new type of credit instrument, called Nota Comercial, alternative legal granted to corporations, limited liability companies and cooperatives for raising public or private resources in the market, both for project financing and to meet liquidity and/or working capital needs.
In a completely opposite direction and strategically packaged under the halo of goodwill, the Executive succeeded in approving the creation of the SIRA - Integrated Asset Recovery System, whose management was entrusted - not by chance - to the PGFN - Attorney General of the National Treasury and which has as stated purpose, "to facilitate the identification and location of assets and debtors", as well as "the constriction and disposal of assets", in addition to "giving effectiveness to court decisions aimed at satisfying obligations of any nature, within the scope of national".
Although the SIRA may also be used by private creditors and may have repercussions in other areas, such as civil, labor and credit recovery, it is clear that its main purpose is to create a support mechanism for the Union, States and Municipalities to boost the collection of tax credits that have accumulated over the last decades, fed by a tax system that is at once onerous, complex, archaic and bureaucratic.
According to data from the publication Justiça em Números 2021 (base year 2020), published by the National Council of Justice (CNJ), tax enforcement proceedings represent approximately 36% of the total pending cases and 68% of pending executions in the Power Judiciary. The amount of tax credits under discussion currently exceeds R$ 6 trillion.
With an eye on the collection of these amounts, the SIRA grants the fiscal arm of the executive branch (the PGFN) "the power to request the information contained in databases managed by public and private bodies and entities", granting the administrators of these bases, " deadline for meeting the request". The rule under discussion enshrined the creation of the Positive Registry, aiming to guarantee the predictability of "PGFN's actions against taxpayers registered in that registry". The PGFN will be able to establish agreements, with States, Municipalities and DF to share information from the aforementioned register.
There is the possibility of integrating SIRA with other systems, such as RENAJUD (interconnection of the Judiciary to Denatran), INFOJUD (requests made by the Judiciary to the Federal Revenue) and SISBAJUD, the Judiciary Power Asset Search System, whose main function to establish communication between this and the financial institutions, enabling the search and blocking of values and financial assets for the fulfillment of court orders in lawsuits.
Another important point is the amendment to Law 9,430, to authorize a kind of outsourcing of tax debt collection, allowing PGFN to hire third-party services to assist its collection activity, set the criteria for selecting the debts that will be the object of outsourcing, the amount and form of remuneration of the contractor, which may be adjusted by success rate, as is practiced in relation to attorney's fees.
In addition to the well-founded fear that the new system will become a tool available to the National Treasury for the investigation of debtors' assets and a veiled authorization to circumvent fundamental precepts guaranteed by the General Law for the Protection of Personal Data, such as respect for privacy and inviolability of intimacy, it is a fact that the creation of the SIRA raises fears that this system may be directed towards constricting and disposing of assets by administrative means - and not by judicial means - rendering ineffective the decision handed down by the Federal Supreme Court when judging ADIs 5,881, 5,932, 5,886, 5,890, 5,925 and 5,931, which proclaimed that the Public Treasury can register, but not decree, the unavailability of assets without a judicial decision or right to an adversary proceeding.
In view of the above-mentioned risks, it would be prudent for taxpayers in general – in particular from the business sector, which concentrate the vast majority of tax disputes – to put their teeth to rest and prepare to face the hardships arising from the implementation of the SIRA.
1 The Doing Busines Project measures, analyzes and compares business regulations and compliance in 190 selected economies and cities at the sub-national and regional levels.
Launched in 2002, the Doing Business project examines small and medium-sized national companies and analyzes the regulations applied to them during their lifecycle.
The ease of doing business index was jointly created by Simeon Djankov , Michael Klein and Caralee McLiesh, three leading economists at the World Bank Group ( link consulted on 10/26/21, 10:20 pm)
2 In "ABES ORIENTADOR - SEPTEMBER/2021", published by ABES - ASSOCIAÇÃO BRASILEIRA DAS EMPRESAS DE SOFTWARE
3 CNJ
4 "In 2019, even before the start of the Coronavirus pandemic, Brazilian tax litigation, which represents all tax disputes in progress at the administrative and judicial levels, reached the level of R$ 5.4 trillion, a value equivalent to 75% of the Gross Domestic Product (GDP) registered that year" (in "Tax Litigation", JOTA, consultation on 10/26/2021, 23:34)
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