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The Federal Court of Paraná ruled in favor of taxpayers in one of the first cases in the country in which the application of the Special Taxation Regime (RET) was discussed for revenues arising from the sales of real estate units made after the completion of the respective building.
Since 2004, developers have been able to benefit from the RET established by Law 10,931, which consists of the unified payment of federal taxes (IRPJ, CSL, PIS and Cofins), through the application of a single rate levied on the monthly revenue received by developers with avenue of the real estate units that make up the developments. The aforementioned single RET rate is currently 1% for projects under the Minha Casa, Minha vida program and 4% for other projects .
The aforementioned regime was instituted at a time of serious credibility crisis in the sector, sparked by the emblematic “Encol case”, an opportunity in which the federal government was forced to seek B2B Lead alternatives to protect consumers and prevent other property buyers from suffering the same losses suffered by customers due to the bankruptcy of the construction giant.
In this context, it was decided to encourage the use of an institute that had long been foreseen in Brazilian legislation, but which was not usually used by incorporation companies, and which would be capable of bringing back the reliability intended by the federal government: the so-called allocated assets .
Therefore, in order to enjoy the benefits of the RET, developers are required to create assets to allocate the land and accessions subject to the real estate development. This institute is provided for in Law 4,591/64, in its article 31-A et seq., and basically consists of keeping the object of real estate development separate, without communicating with the rest of the developer's assets.
The granting of the special taxation regime, including the reduction of the general rate from 6% to 4% in 2013, aimed to increase the volume of enterprises, generating a series of jobs and helping in the growth of the sector that still feels strongly the effects of the serious financial crisis that is plaguing Brazil.
For many years, developers continued to use the benefit of the RET until the sales of all real estate units resulting from the incorporation subject to the allocation regime were completed. This conduct was based on statements presented by the Federal Revenue itself, in particular the Consultation Solution DISIT/SRRF07 7.045/15.
However, companies were surprised by the content of Cosit Consultation Solution 99.001/18, which was binding on all taxpayers, which revoked Consultation Solution 7.045/2015, establishing the understanding that: “Revenues are not submitted to the RET arising from the sales of real estate units carried out after the completion of the respective building”.
The reflection of the Federal Revenue's position is the immediate and unexpected increase in the tax burden on incorporations, as revenue from sales made after construction became subject to the normal taxation regime, much higher than that provided for in the RET.
After the change in the Revenue's understanding, two incorporation companies located in Paraná, unhappy with the sudden change of understanding, proposed legal action demonstrating that the essence of the RET is to benefit all sides of the obligatory relationship: (i) consumers, with the effective reduction in property prices and access to much-desired housing, in addition to the security of delivery of the property at the end of construction; (ii) developers, with the simplification of taxation and the reduction of the tax burden valid for all built units, regardless of the moment of sale; and (iii) the country itself, with the economic movement resulting from the sale of properties and the generation of thousands of jobs.
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发表于 2024-3-14 13:16:30