The new version of the regime will allow membership by individuals and legal entities, resident or domiciled in Brazil on June 30, 2016, as well as by the estate whose succession has been opened up to the date of effective accession, which maintain resources of lawful origin abroad, earned in periods prior to this date and which have not been declared to the competent authorities, without incurring any sanctions of an administrative or criminal nature.
However, such amnesty will be limited to the date of joining the program, the period of which will be reopened for 120 days from its regulation by the Brazilian Federal Revenue Service (“RFB”) to be released at the end of April 2017.
In the new RERCT system, the taxpayer must collect 35,25% on the amount to be regularized (income tax at the rate of 15% and regularization fine corresponding to 135% of the amount of tax collected), considering the equity situation of the asset to be regularized in June 30th, 2016, converted into reais (“BRL”) at the dollar rate set for sale by the Central Bank of Brazil (“BACEN”), for that date, whichever is, R$3,209.
Taxpayers who have already joined the first stage of the complementary program are entitled to submit the Exchange and Tax Regularization Declaration (“DERCAT”) already transmitted, being obliged to collect the tax and fine due on the additional amounts, converted into reais at the aforementioned dollar exchange rate.
In the event that the taxpayer's declaration contains inaccuracies regarding the value of the assets, Law No. 13.428/2017 granted the RFB the right to demand payment of taxes and legal surcharges levied on the undeclared portion by means of a notice of infraction, unlike what occurred in the first phase of the program, in which the participating taxpayer was excluded from the regime, running the risk of being assessed for payment of income tax at a rate of 15%, interest on arrears and a fine that could reach 150% of the tax amount.
In this context, instead of automatically excluding the taxpayer due to any inaccuracy or discrepancy in the value of assets, the new RERCT authorizes payment within a maximum period of 30 days from the issuance of the infraction report, maintaining the criminal amnesty for crimes committed up to the date of adhesion, relating to the portion of assets declared incorrectly.
This possibility of correcting information without exclusion from the regime will certainly bring less concerns regarding the criteria to be adopted for regularizing assets, be it photo (“portrait” of the asset or right’s financial situation on June 30, 2016) or the movie (which includes the overall value held abroad in previous periods, covering the consumed portion of assets, which no longer form part of the declarant's assets on that date).
Law No. 13.428/2017 also did not provide any definition regarding the impossibility of joining the new RERCT by heads of the federal, state and municipal executive powers, by public agents of direct or indirect public administration, as well as by their spouses and blood relatives or relatives by marriage, up to the second degree or by adoption, so that the rule of the previous regime is maintained, which prohibits joining by heads of any of the three powers and public agents holding public positions or functions on January 14, 2016.
Income, fruits and accessories earned from July 1, 2016, originating from regularized assets, must also be included (i) in the annual income tax adjustment declarations for the 2016 calendar year, or in its amendment, in the case of an individual, (ii) in the corporate accounting records for the calendar year of accession and subsequent years, in the case of a legal entity, and (iii) in the declaration of assets and capital abroad (“CBE”) for the calendar year 2016, applicable to both.
The declaration of such income in the form indicated above, if carried out until the last day of the deadline for joining the new RERCT, will have the effect of spontaneous reporting, exempting the taxpayer from paying the late payment fine, without prejudice to the need to update the value by the Selic rate.
