The assets or rights listed by a jointly and severally liable party may be replaced by the assets of the main debtor, even if the latter does not meet the requirements for the listing. However, the taxpayer must make a request before the replacement. The new rule is set out in article 15, paragraph 5 of Normative Instruction RFB No. 2,091, published by the Federal Revenue Service this Thursday (23\/6).<\/p>\n\n\n\n
Jointly liable parties are legal entities or individuals who are linked to the company that has been fined and who can be charged for the entire debt. The inventory of assets is a way of ensuring that, in the event of a tax execution, the tax credit is paid off. With this, the indicated assets are under the supervision of the IRS, so that they are not emptied in an attempt to save them.<\/p>\n\n\n\n
According to the rules of the Federal Revenue Service, the tax debt is only listed when the amount of the tax debt exceeds, simultaneously, 30% of the net assets of the person being inspected and the amount of R$$ 2 million. Therefore, even if the main debtor, for example, the company, does not meet these requirements, its assets may be listed in place of the assets of the joint and several debtors.<\/p>\n\n\n\n
\u201cEven if the company has surplus assets, the IRS monitors the individual assets of each executive. If the tax credit exceeds 30% of their assets, it lists the assets of each one,\u201d explains tax specialist Daniel Loria, from Stocche Forbes Advogados.<\/p>\n\n\n\n
Tax specialist Vivian Casanova, from BMA Advogados, states that, often, the assets of the individuals held liable are listed, even if the main debtor legal entity does not have theirs listed. \u201cToday, therefore, what is expected is that the main debtor may offer assets to release the assets of the individuals held liable,\u201d she explains.<\/p>\n\n\n\n
According to lawyers consulted by JOTA, the provision is positive, since it allows executives to avoid being harmed by the inventory throughout the administrative process. This is because the inventory of assets does not allow taxpayers to make decisions without notifying the IRS. Tax experts say they have worked on many cases in which taxpayers tried to make the substitution and were unable to do so.<\/p>\n\n\n\n
Furthermore, although the Federal Revenue Service allows the sale of listed assets, in many cases taxpayers are unable to sell them, since these assets are not well regarded by buyers. \u201cThis ruins the individual\u2019s life. No one wants to buy a listed property,\u201d says Daniel Loria.<\/p>\n\n\n\n
For the lawyer, the IRS could have gone further. This is because, for him, the normative instruction does not resolve the situation in which executives who are no longer with the company have their assets listed years later, after all, in many cases the company does not agree to offer its assets for the assets of the former executive.<\/p>\n\n\n\n
Check out the device below:<\/p>\n\n\n\n
\u201cArticle 15 \u2014 \u00a75\u00ba The replacement, upon request, of assets or rights listed by the jointly liable taxpayer with assets or rights of the main taxpayer is permitted, even if the latter does not meet the requirements set out in Article 2, with the same applicable provisions being applied if the aforementioned classification is verified\u201d.<\/p>\n\n\n\n