The installment tax debt for companies opting for Single National legislation is still a novelty, for that reason just emerging doubts about this tax benefit, seeking to shed light on this issue focusing on adherence or maintaining this differentiated regime for holding companies parceling with the IRS.
First we should note that even before the regulation of installment debts SIMPLE, had already 10.522/2002 Law No. (PGFN regulated by Ordinance No. 802/2012) which allowed, in theory, the splitting for any debts with the Union, in But understanding the administration had been that this law could not be applied to the National Simple, being in the VERY short a tax benefit that involves a differentiated tax system and therefore was required to regulate the subdivision to the National Simple.
The RFB Normative Instruction n º 1.229/2011 (recently changed IN RFB No. 1.329/2013) came to fill this "gap" finally legal and regular installments for Simple, allowing the federal public official whether to accept the request of companies opting for installment by National Simple.
This regulation allowed the parceling of debts arising from Simple and establishing among other things, to allow adherence to the subdivision, which was adimplida, the taxpayer, an iota worth $ 500.00 more recently the last change This regulation, which took place in January 2013, resulted in important changes, which eventually decrease the minimum passing this parcel for $ 300.00 (§ 1 of Art. 5 of that IN RFB).
Another important point that we should note is what determines the item XV of Article 15 of Resolution CGSN No. 94, November 29, 2011, which envisages the contrary, companies with debts, thus holding the condition of debtors, however with suspended, or may choose to keep their choice of SIMPLE, which in turn came only to corroborate what has already dealt the art. 17, item V of the Act Simple (LC No. 123/2006); see what that article says 15, XV:
Article 15. You can not collect taxes in the form of the Single National ME or EPP: (Complementary Law No. 123 of 2006, art. 17, caput)
(...)
XV - having debt with the National Social Security Institute (INSS) or Treasuries with the Federal, State or Municipal, whose enforceability is not suspended; (Complementary Law No. 123 of 2006, art. 17, item V) (...)
Now Add up the item XV of Article 15 of Resolution CGSN No. 94/2011, section VI of the art. 151 of the CTN, which handled the suspension of the tax credit for companies and installment, which was eventually ratified by art. 3 of the norm that regulates the division of Simple (IN RFB No. 1.229/2011), and this article versa:
Article 3 The application for subdivision matter in suspension of payment of debts, getting the approval of the application subject to the existence of subsequent payment of the first (1st) delivery. (Grifamos)
We have then that the debts due to the simple and installments according your special regulation, the application for the payment of installments totaling 1 st tempest, per sí already permits the maintenance of the company's Simple option.
There remains the question, and as firms excluded debts or even companies borrowing from the Real or Assumed regimes, they could come back or even join the Simple option?
From what has been described one might say yes, however in cases of debts of other regimes should be noted that not just the application and payment of the 1st installment, should the request be granted or procured its acceptance as is versed in jurisprudence and law determines that the defendant is in installments and the same will not be accepted within 90 days of the request, should be the same be considered for suspension of the tax credit, according to the wording given by art. 35 of Law 11.941/09 to subsection II, paragraph 1 of Art. 12 of Law 10.522/02, but let's see:
"Art 35. The Law 10522 of July 19, 2002, becomes effective with the following changes:
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"Art 12. The request is granted installment acknowledgment of debt instrument and skilled and sufficient for the requirement of the tax credit, the accuracy of the values may be in installments subject to verification.
§ 1 Upon fulfillment of the conditions laid down in art. 11 of this Act, the installments will:
I - Consolidated the date of the request, and
II - deemed automatically granted when the expiration of ninety (90) days from the date of application for subdivision unless the National Treasury has spoken.
§ 2 While not grant the request, the debtor is obliged to collect each month in anticipation, corresponding to a portion. "(NR)
(...) "
(Our emphasis)
So we have the split simple as opting keeps the company of the same, and the refinancing of debt schemes other than the single, with the IRS, may create opportunities for the option even if perchance there was the required installment, although pending approval, for more than 90 days, so it should be considered suspended the tax credit and the tax benefit granted by the option of Single National differentiated regime, pursuant to art. 151, the VI National Tax Code.