Post by account_disabled on Mar 12, 2024 21:41:09 GMT -6
CommercialJudiciary
In today's column, we will deal with the topic of interest on equity (JCP), this typically Brazilian legal figure - as they say about things that are only seen here, a “jabuticaba” -, created by Law No. 9,249/95, in your art. 9th [1] .
Its creation had several objectives - which is why JCPs have always been the subject of multifaceted analyzes - which can be summarized in four: a) to make shareholders' choice neutral regarding the capitalization of companies through equity (" equity ") or through third-party capital (" debt "); b) encourage capitalization and reduction of corporate debt; c) promote integration between income taxation between individuals and legal entities; and d) reduce the effects of the extinction of monetary correction of financial statements, extinguished by art. 4th of Law No. 9,249/95, as a way to combat inflation in the country [2] .
As could be expected, given its peculiarity, the payment of JCP also involves a series of controversies within the scope of Carf, from its legal nature, whether interest or dividends , especially for the purposes of applying double taxation agreements, its limits quantitative aspects of its deductibility, even going beyond the scope of the 1st Section, when discussing the incidence of PIS/Cofins on amounts received under this heading.
Due to space limitations, we chose to address a topic that is repeatedly discussed in Carf, and which came to the fore with the proposal to prepare a summary regarding it: the issue of the time limit for the deliberation and deductibility of JCP paid to partners or shareholders .
Explaining further, it is discussed whether it is Portugal Mobile Number List possible for the company to subsequently decide on the distribution of retroactive JCP (which were not paid in previous years) in the current year, or whether the limits for payment referred to in art. 9, §1, of Law No. 9,249/95 [3] must refer to the same period, taking into account the accrual principle (i.e., both profits and the variation in the TJLP and PL account balances must refer to the year in which the JCP were paid).
Due to the enormous number of rulings handed down on the matter, we chose to present successively the arguments in favor of the two positions.
Well, Ruling No. 1302-002.098 [4] stated that IN SRF No. 11/1996, in its art. 29, established that JCP should be deducted when calculating real profit, observing the accrual basis , while art. 30, pu, established that its registration would be in return for financial expenses (contrary to the provisions of CVM Deliberation No. 207/1996, which indicated that JCP should be excluded from net profit only when calculating real profit, as an adjustment exclusively tax).
Along the same lines, Judgments No. 1401-002.105 [5] and 1402-003.899 [6] emphasize that, for deductibility purposes, JCP cannot exceed half of the net profit corresponding to the base period of interest payment or credit , or half of the balances of accumulated profits and profit reserves, and that such reasoning follows from art. 177 of Law No. 6,404/76, which establishes the accrual basis as a basic criterion for recording the operations of the legal entity. Therefore, since interest expenses are related to the existence of profits or reserves in a given period, the requirement to match revenues and expenses requires that JCP be recognized in the year corresponding to the decision on the destination of profits, and not later.