As a result of Law No. 13,988/20, which regulates the tax transaction provided for in the National Tax Code (art. 171)^[1], the Federal Revenue Service of Brazil (RFB) and the Attorney General's Office of the National Treasury (PGFN) signed, on April 18, 2021, notice of a new modality of transaction by membership, which involves social security contributions and to other entities and funds on profit sharing (PLR), in breach of Law No. 10,101/00.

Although tax transactions are already foreseen and regulated for situations which, in accordance with the definition contained in the legislation, involve unrecoverable and difficult claims, this is the first time that the Union has elected a specific litigious thesis to enter into a transaction with the taxpayer, regardless of the possibility of recovery of the claim.

The new transaction modality will have as scope administrative or judicial processes that deal specifically with:

• PLR-Employees: interpretation of the legal requirements for the payment of PLR to employees without the incidence of social security contributions and
• PLR-Directors: legal possibility of payment of PLR to directors not employed without the incidence of social security contributions.

According to information available so far, the taxpayer who opts for the new mode of transaction shall indicate all tax debts that see the legal controversy in reference, in addition to irrevocably and irrevocably confessing to be debtor of said debts, giving up the respective administrative and judicial discussions and renouncing the claims of law on which they are founded.

It is important to emphasize that those who adhere to the new modality should be subject to the understanding given by the Tax Authorities to the legal controversy transuded, including in relation to future or unconsummated generating facts, a measure that aims to end discussions on the subject.

The agreement may be formalized between July 1 and August 31, 2021. The procedures and resources of this transaction will be centralized in the e-CAC system (cav.receita.fazenda.gov.br), if the debt is linked to RFB, and on the Regularize portal (www.regularize.pgfn.gov.br), if the debit is linked to the PGFN. The taxpayer must give consent to the sending of communications to the tax domicile.

Payment can be made within five years, applying the Selic fee. The discounts granted will be applied in a regressive manner, focusing on principal, fine, interest and charges, depending on the number of installments paid. Initially, it is necessary to pay 5% of the tax debt without reductions, which can be divided into up to five successive monthly installments. The applicable discounts are indicated in the table below:

The processes with judicial deposit require special attention, because, according to the notice, the agreement to the transaction will imply the automatic conversion of deposits into union income, and the above payment terms will be applied only to the remaining balance of the debt.

It is also noteworthy that the adhering to the tax transaction does not imply the release of the taxes resulting from the bearing of assets, fiscal injunctive relief and the guarantees provided administratively, in the actions of tax execution or in any other legal action. Such exemption will occur only after the discharge of the tax debt.

The notice also brings the obligations to be assumed by the adherent, which involve transparency about their economic situation, maintenance of fiscal regularity and before the FGTS, maintenance of solvency before the Tax Authorities, among others.

Considering that this is a legal thesis Contested and which involves significant amounts, there is expectation in relation to the evolution of the theme to reduce litigation.

^[1] Art. 171. The law may provide, under the conditions it establishes, to the active and passive persons of the tax obligation to enter into a transaction that, through mutual concessions, imports in dispute determination and consequent extinction of tax credit.

Single paragraph. The law shall appoint the competent authority to authorize the transaction in each case.