Brazilian companies that pay Interest on Net Equity (known as “JCP”) to shareholders and stockholders are allowed to deduct the amounts paid from gross income without time limitation, according to a recent ruling rendered by the Brazilian Federal Administrative Tax Court (CARF). It is a very important “overruling” favorable to taxpayers.
JCP subject to income tax at a flat tax rate of 15% (general rule) or 25% (if the beneficiary is a nonresident company or individual located in a blacklisted jurisdiction – tax heaven). From an objective point of view, the advantage to companies is that that JCP is deductible from Corporate Tax (IRPJ) and Social Contribution on Profits (CSLL) calculation of basis, which combined can reach a rate of 34%.
Just recently, it has been recognized that the deductibility has no time restrictions because there is no such provision of the law. In a more exact way, the deductibility of JCP from gross income includes interest of previous periods. There are indeed legal requirements and deductibility limits are provided, but they there is no time restriction.
It is a very favorable decision to taxpayers, especially because it strengthens the principle of tax legality and legal certainty, recognizing that the time limitation established by the Federal Revenue of Brazil (RFB) in order to discipline the matter is a restriction that is not provided by the law and, therefore, it is illegal.
It is worth noticing that this “overruling” by the Brazilian Federal Administrative Tax Court is related to changes of procedure rules in the administrative proceeding. Everyone responsible for decision-making on behalf of companies, especially in Brazil, must follow legislative changes, including procedure changes, and the administrative and judicial decisions.
