On April 14, 2023, the Brazilian Federal Revenue Service published Ordinance 315/2023, which regulates the substitution of assets listed in tax assessments with bank guarantees or insurance guarantees to secure tax debts, with effectiveness starting on May 1, 2023.
With the establishment of these rules, taxpayers will have the option to cancel asset listings and replace them with one of these forms of security, which was not possible before due to the lack of regulation.
Asset listing is a procedure in which the tax authority lists the assets and rights of the taxpayer that are subject to seizure in case of a tax debt. When an asset is listed, the listing is recorded in the asset’s registration, which can affect its sale as potential buyers may be hesitant to acquire an asset subject to seizure.
It is also provided that insurance and bank guarantees may replace assets and rights offered in tax transactions negotiated with the Federal Revenue Service. This means that instead of offering an asset as collateral for a negotiation with the Federal Revenue Service, the taxpayer can present any of these types of collateral.
Furthermore, taxpayers may present insurance guarantees or bank guarantees in certain customs operations, such as inspection procedures to combat fraud in special customs regimes, common authorization for operating in express cargo customs clearance, and requirements for amounts related to antidumping or countervailing duties.
It is worth noting that the substitution of assets listed by the tax authorities with insurance guarantees or bank guarantees was already provided for in Normative Instruction 2,091/2022. Now, with the new Ordinance 315/2023, taxpayers will be able to cancel asset listings and replace them with one of these forms of security.
For the offering of insurance guarantees, the taxpayer must provide the insurance policy, proof of registration of the policy with the Superintendence of Private Insurance (Susep), and a certificate of regularity of the insurance company with Susep. In addition, the policy must provide for the continuation of insurance even if the policyholder does not make payments on the agreed dates. If the guaranteed debt has not been resolved within 60 days before the end of the policy’s term, the taxpayer will be required to renew it with an updated amount for the main insured object.
In the case of bank guarantees, the letter must contain a solidarity clause between the financial institution and the interested party, with an express waiver of the benefit of order provided for in Article 827 of the Civil Code. The term of the guarantee should be indefinite or until the debt is settled. The letter of guarantee must also include a clause in which the financial institution waives the provisions of Article 838, item I, of the Civil Code.
It is important to highlight that the acceptance of insurance guarantees and bank guarantees will depend on the analysis of the Federal Revenue Service inspector, who may or may not accept them.
Nevertheless, it cannot be denied that the ordinance brings more clarity and legal certainty for taxpayers and for the tax authorities themselves, as it establishes clear requirements for the acceptance or rejection of guarantees, ensuring equal treatment among taxpayers who present insurance and bank guarantees under similar conditions.