Ordinance 12/2002 -CRISE COVID-19 - Can companies ask for the extension of tax due date?
By Eliane Cunha e Marcio Silveira
In view of the social and economic scenario that is worsening due to the actions of the COVID – 19 pandemic, these are beginning to emerge seeking to postpone the deadlines for RFB administration tax payments.
Many companies are filing lawsuits and are using Ordinance MF No. 12 of 2002 as a basis for postponing tax payment, which allows for an extension in the event of a public calamity duly registered by state decree, as follows:
MF Ordinance 12/2012:
Art. 1 The due dates of federal taxes administered by the Federal Revenue Service of Brazil (RFB), due by taxpayers domiciled in the municipalities covered by a state decree that has recognized a state of public calamity, are extended to the last business day of the 3rd (third) subsequent month.
It so happens that article 3 of the said decree brings:
“Art. 3 The RFB and PGFN will issue, within the limits of their powers, the acts necessary for the implementation of the provisions of this Ordinance, including the definition of the municipalities referred to in art. 1st. ”
So far, there is no publication by the RFB and the PGFN, so we understand that the application of the aforementioned decree is not authorized.
We currently have three response scenarios for the exposed situation:
- In the first, there is a denial of preliminary orders, removing the validity of the ordinance;
- In the second scenario, there are favorable decisions with a political bias;
- And in the third scenario we have injunctions granted with technical bias and with social counterparts, an example was a decision that was granted with the proviso “as long as the staff of the applicant company is maintained, except for possible dismissals for just cause”, in this case the Company had to check the maintenance of its employees on a monthly basis.
In view of the above, it is necessary to clarify that the application of Ordinance 12/2002 depends on a judicial provision, therefore, we understand that it is a risk for the company to use the ordinance without filing a judicial measure aiming at the recognition of such right.
The HLB Brasil team is following all changes and discussions on the topic and will inform you when there is news. Access our exclusive page with information on topics related to COVID-19.
Eliane Cunha is COO of the BPS-SP team at HLB Brasil and Marcio Silveira is Indirect Tax Manager at HLB Brasil.