Since May 2022, a tax transaction program for debits related to goodwill amortization has been offered by the Brazilian tax authorities. The deadline for admission is July 29th, 2022.
Recently, the Brazilian Tax Authorities published a new act to clarify issues regarding the program (Parecer SEI 37/22/ME).
THE FIVE “THESIS ABOUT GOODWILL”
To opt on this transaction the company should renounce the discussion of a certain thesis in relation to all ongoing proceedings, regardless of the transaction to which the goodwill refers.
Dealing with the need of the company to opt on the program with “all discussions related to the thesis”, the new act distinguishes five thesis related to goodwill tax amortization:
- Possibility of transferring of the paid goodwill.
- Possibility of goodwill payment with the use of a conduit company.
- Requirements regarding the report for future profitability.
- Amortization of internal goodwill, established in operations between related parties.
- Addition of expenses of goodwill amortization in the CSLL taxable basis.
As an example, one could suppose a company with 3 administrative proceedings (“A”, “B” and “C”) discussing the amortization of goodwill, but related to 3 different M&A operations, and that in the first two proceedings (“A” and “B”) the tax audit was motivated by the use of a “conduit company” for the acquisition, while in the third proceeding (“C”) the issue involves the requirements of the future profitability report of the acquired company. If the company wants to include proceeding “A” in the transaction, it will also have to include proceeding “B”, because they are both related to the same thesis (“conduit company”). Regarding proceeding “C”, however, since the discussed thesis is not the same (future profitability report), the inclusion in the transaction is not mandatory.
FUTURE TAX TRIGGERING EVENTS
The new act clarifies that potential tax triggering events not yet formalized at the time of the transaction will not be covered by the program. If the company receives new tax charges related to the same “thesis of goodwill”, the company would be free to present its administrative or judicial defense, aiming to discuss the thesis in question.
The new act confirmed that all fines related to goodwill amortization can be included in the transaction program, and benefit of the discounts applicable. On the other hand, the company is also free to opt on the transaction only with the principal amount, continuing the administrative or judicial discussion of the penalties only.
Our tax team is available for any clarification.
For further informations, contact:
José Flávio Pacheco
Luís Flávio Neto