EDUARDO CUCOLO
SÃO PAULO, SP (FOLHAPRESS)
Around 40 tax experts, both in favor and against the current text of the Tax Reform, will deliver to the Senate a document proposing changes to the wording of some articles, but trying to preserve the principles of PEC 45.
Among the lawyers participating in the discussions are Heleno Taveira Torres, Melina Rocha, Eduardo Fleury, Gustavo Brigagão, Fernando Scaff and Ana Cláudia Utumi. The initiative is led by AASP (Association of Lawyers) and IASP (Institute of Lawyers of São Paulo).
The inclusion of the Union in the Federative Council, the review of the classification of regimes as favored or specific, the scope of the Selective Tax and the removal of articles that deal with the transition period from the Constitution are among the proposals.
The group met last week to discuss seven points of the PEC and hopes to conclude the proposals by next Friday (22).
“Tax reform is not ideal. Everyone already knows this. But within what is on the table, what can we improve?”, says Antonio Amendola, director of AASP. “There are numerous technical problems. As a consequence of this, we will have litigation.”
“The idea is to improve the text. We even had a few disagreements, most of it was consensus, consensus to improve the PEC. Everyone sees that the text has problems”, says Susy Gomes Hoffmann, from IASP.
FAVORED SCHEMES
Amendola, from AASP, states that the current wording of the PEC does not maintain a logic when separating differentiated regimes (with tax rate reduction or exemption) from specific regimes (such as fuel and amusement parks), which may generate future questions related to the issue of isonomy.
It would also be necessary to relate the differentiation to some constitutional principle.
The group will not propose removing or including new sectors, goods or services among those benefiting, as this is a political issue.
UNION IN THE FEDERATIVE COUNCIL
“We were unanimous, when we spoke about the Federative Council, that we have to make some suggestion for the Union to participate”, says Hoffmann, from IASP.
According to her, the Union would not participate in issues related to the collection, distribution and reimbursement of IBS, but a joint understanding is necessary on the interpretation of the rules for the new taxes. “We need just one administrative process,” she says.
In an interview with Folha, tax expert Marcus Lívio, partner at the firm Salomão Advogado, had already spoken about the risk that the two “twin” taxes created by the Tax Reform would become irremediably distinct from each other. He is one of the experts chosen to provide technical support to the committee that deals with the reform of the Senate’s Economic Affairs Committee.
SERVICES WITHOUT SELECTIVE TAX
Hoffmann says that some lawyers suggested removing the Selective Tax from the PEC and using an additional CBS/IBS to tax, for example, cigarettes and alcoholic beverages, but it was understood that this would invade the political choice of parliamentarians.
Therefore, the suggestion will be a wording that restricts its application. Services and production processes, for example, are beyond your reach.
The group will also suggest the exclusion of article 19, which deals with the state contribution on primary and semi-finished products. This topic was not discussed by the participants, as the issue was already unanimous among everyone.
Another suggestion is to include in the PEC the need to recover credits from other taxes that will be extinguished, in addition to ICMS.
LIABLE SUBJECT OF TAXES AND TRANSITION OUTSIDE THE PEC
The group of tax experts will make some suggestions for text suppression. For example, the article that says that the taxable person may be “the person who contributes to the carrying out, execution or payment of the operation, even if resident or domiciled abroad”. The assessment is that the National Tax Code already addresses the issue.
It was also assessed that the articles on the transition period should be in a complementary law, and not in the Constitution.
Another point is to remove the numerous mentions that this issue will be regulated by complementary law, as there would be no need to make this reference.
Representatives of the two entities highlight the diversity of positions among tax experts on the reform – they themselves have opposing views – and say that the final document to be delivered to the Senate will be a position of the group of lawyers, and not of these entities.
“If we manage to make a PEC and complementary laws well done, we will have a system in ten years that is much better than what we have today”, says Hoffmann.
“I don’t agree,” says Amendola. “I think the way all of this was proposed is a little disruptive.”
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