Nova norma da Receita pode virar alegação contra imposto sobre lucro

Nova norma da Receita pode virar alegação contra imposto sobre lucro

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Companhias com atividades fora do País podem buscar em publicação uma chance de evitar pagamento

Entendimento do fisco é de que a cobrança por ganhos de controladas e coligadas das empresas brasileiras é devida mesmo em casos de países que têm acordo com o Brasil contra bitributação

São Paulo – A Instrução Normativa 1.674 da Receita Federal pode se tornar mais um argumento para as empresas brasileiras que questionam o pagamento de impostos sobre o lucro de controladas e coligadas em países com os quais o Brasil tem acordos contra bitributação.

Segundo o tributarista do escritório Rivitti e Dias Advogados, Raphael Assef Lavez, o fisco justificou em outras instruções, em 2013, a tributação de companhias nessa situação com base na ideia de que o que estava sendo tributado não era o resultado do exercício, e sim o reflexo dele no balanço da controladora brasileira. É como se companhias como Vale, JBS, e Petrobras, que possuem operações em outros países fossem tributadas não pelos lucros que elas tiveram lá fora, mas pelo efeito desses resultados nos seus balanços aqui no Brasil. Mais precisamente, na linha do Ativo que se refere aos investimentos realizados.

No entanto, uma das mudanças que vieram com a nova norma, publicada semana passada, foi a maneira como o resultado das coligadas vai aparecer no balanço. Antes, com a Instrução Normativa 1.520, o valor surgia como uma subconta que mostrava a base tributável no Brasil e o restante aparecia na própria conta de investimentos. Agora, pela nova regra, será criada uma subconta e uma subconta auxiliar de valor negativo para zeragem, e não se mexe mais na parte de investimentos. “Esse método deixa claro que não se está tributando o acréscimo patrimonial. Pegamos o lucro lá de fora e criamos uma subconta para evidenciar isso. Você tributa o lucro da empresa lá de fora. O tratado não permitiria isso a princípio”, avalia Lavez.

Ele conta que isso coloca por terra a argumentação da Receita de que estaria tributando partes diferentes das demonstrações financeiras, ou seja, patrimônio e não o resultado auferido em um período.

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A opinião é compartilhada pelo especialista da área tributária do Barbosa, Müssnich, Aragão Advogados, Luis Henrique Costa. Segundo ele, a redação atual deixa mais clara que a intenção do fisco sempre foi taxar aquilo que é lucro de controladas diretas e indiretas em outros países. Mesmo aqueles com os quais o País tem acordos contra a dupla tributação, que são África do Sul, Argentina, Áustria, Bélgica, Canadá, Chile, China, Coreia do Sul, Dinamarca, Equador, Eslováquia, Espanha, Filipinas, Finlândia, França, Hungria, Índia, Israel, Itália, Japão, Luxemburgo, México, Noruega, Países Baixos, Peru, Portugal, República Tcheca, Suécia, Trinidad e Tobago, Turquia, Ucrânia e Venezuela.

Costa observa que desde o início o expediente usado pelo fisco para dizer que não estava tributando os lucros já era discutível. Na Lei 12.973/14, segundo ele, a Receita simplesmente evita o uso da palavra. “O que a lei faz é não usar a palavra lucro, porque o tratado neutralizaria essa tributação. Então é como se o texto abordasse de um imposto sobre a receita menos as despesas operacionais, financeiras. Na prática é a mesma coisa”, diz.

Por outro lado, o especialista tributário do escritório Gaia, Silva Gaede Advogados Associados, Daniel Teixeira Prates, destaca que nesse sentido a lei não trouxe muita novidade, porque o entendimento da Receita continua sendo o de que o tratado não se aplica contra a lei de 2014. “Essa discussão existe faz tempo, essa parte das subcontas é mais um detalhe técnico”, conta.

Outros destaques

Além dessa questão das subcontas, a norma editada pelo fisco na semana passada também trouxe outras mudanças, como a possibilidade de que a controladora brasileira de empresas e coligadas no exterior possa escolher se os impostos sobre os lucros delas serão recolhidos em regime de caixa ou regime de competência.

Mas, como lembra Costa, é preciso atentar ao fato de que não é preciso colocar todas as empresas no mesmo regime.

Fonte: Fenacon
Data: 09 de dezembro de 2016
Acesso: 09 de dezembro de 2016

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