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A Provisional Measure (similar to a Presidential Decree), issued in Brazil on 4 June 2024, introduces significant constraints for Brazilian taxpayers seeking to monetize value-added tax (VAT) credits.

Details

Provisional Measure No. 1,227 aims to reduce the financial impact of the payroll tax relief policy extension for companies and municipalities (Law No. 14,784/2023). Among the measures announced to improve the cash flow of the Tax Revenue Service is a limitation on compensation related to the Program of Social Integration (PIS) and Contribution for the Financing of Social Security (COFINS).

Affected taxpayers will be those who recognize PIS/COFINS credits as a consequence of a final judicial decision, enjoy presumed credits of PIS/COFINS and have tax-relieved revenue.

Depending on the taxpayer's sector, the restriction generally affects the ability to offset other taxes with excess PIS/COFINS credits, as well as the reimbursement of overpaid PIS/COFINS social contributions. Affected sectors primarily include the pharmaceutical, food production and petrochemical sectors.

For taxpayers with tax-relieved revenue, the calculated credits will only be subject to a reimbursement request, meaning they can no longer be compensated against (i.e., used to offset) other federal taxes.

The new rule reaches all credits calculated according to the noncumulative system of PIS and COFINS, including those that are the subject of a final judicial decision.

This means that credits calculated due to the acquisition of inputs, energy, freight, assets, among others, can no longer be credited against federal taxes, but only against PIS and COFINS social contributions. Taxpayers that accumulate positive PIS/COFINS credit balances (and therefore are not collecting PIS/COFINS monthly) must request reimbursement, a procedure that can be more time-consuming for companies.

Implications

At first glance, the above restriction, whether for credits associated with judicial rulings, presumed credits or normal credits resulting from noncumulative PIS/COFINS, tends to greatly affect the cash flow of taxpayers and also make it difficult to carry out monetization plans. Therefore, it is important for companies to reassess their credit consumption plans, analyzing the impacts that this new Provisional Measure may bring to their operations and financial statements. Evaluating new alternatives for monetizing credits (e.g., changes in their corporate/operational structure) can be one way to accelerate the monetization process.

Provisional Measure No. 1,227 has the force of law and is effective from its publication; it will remain valid for a 60-day period (which can be extended for an equal period). However, it still needs to be analyzed by the National Congress for future ratification.