On June 30, the Federal Treasury and the Federal Revenue of Brazil enacted Legal Opinion 37/2022, to clarify some doubts of Notice 09/2022, which elected “Goodwill amortization before rules of Law No. 12,973/14” as the second tax thesis subject to a TAX SETTLEMENT AGREEMENT based on Law no. 13,988/2020 and Ordinance ME nº. 247/2020. The adhesion term is from May 02 to July 29, 2022.
Please find below the main points clarified by the Legal Opinion 37/2022:
- there are 5 (five) specific subjects involving goodwill that can be enrolled on the tax settlement agreement separately. They are the following:
1. Transfer of the goodwill paid in a transaction performed between independent parties, however the investor intends to transfer the goodwill paid to another company;
2. Payment of goodwill by means of a vehicle company;
3. Evaluation report requirements;
4. Internal goodwill, generated between related parties;
5. Addition of goodwill amortization expenses in the calculation of the CSLL tax basis.
- as a general rule, the penalties (both standard and aggravated) qualify for the tax settlement agreement and are liable for payment with discounts. However, if the specific case involves an addition tax dispute (not related to goodwill), the taxpayer can maintain the discussion of the penalties, instead of paying in the tax settlement agreement.
- tax credits not formally constituted by the tax authorities by the date of the issuance of the Public Notice No 09/2022 cannot be enrolled to the tax settlement agreement’s proposition. In this case, the right of future defense to such tax debts by the taxpayer is preserved.
Considering these clarifications, taxpayers must carefully evaluate their specific case (since each goodwill amortization has its peculiarities and to join the program the taxpayer can not settle specific transactions, but only the discussion involved), calculate and compare the relevance of the discounts in view of the chances of success and consider the impact of the need to waive all cases that have the same subject.
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