The tax amnesty enacted by the Rio de Janeiro State was just regulated through Decree 46.453/2018, published on October 11, Resolution Sefaz 333/2018 and Resolution PGE 4280/2018, both published on October 22. The deadline for enrollment into the amnesty program is of 30 days from November 1, 2018.

According to this program, the taxpayer can settle tax debts related to ICMS, IPVA (in the case of natural persons) and fines imposed by the State Accounting Court, with an amount higher than 450 UFIR-RJ (currently BRL 1,482.25), with due dates before June 30, 2018, whether assessed or not, enrolled into the State outstanding debtors list or not and including those already being collected in court.

Benefits

The program allows the payment of the consolidated tax debt (updated amount plus fines and interest) according to the following alternatives:

(i) a lump sum payment, paid up until the last working day of the issuance month of the payment form (DARJ), with a reduction of 85% of fines and 50% of default interests;

(ii) in 15 installments, with a reduction of 65% in fines and 35% of default interest;

(iii) in 30 installments, with a reduction of 50% in fines and 20% of default interest; or

(iii) in 60 installments, with a reduction of 40% in fines and 15% of default interest.

Debts related exclusively to fines resulting from non-compliance with ICMS’ obligations, whether or not enrolled into the State outstanding debtors list, can be included in the program if the fault occurred until March 31, 2018, according to the following payment alternatives:

(i) in a lump sum payment, paid up until the last working day of the issuance month of the payment form (DARJ), with a reduction of 70% of fines and 50% of default interest;

(ii) in 15 installments, with a reduction of 55% in fines and 35% of default interest;

(iii) in 30 installments, with a reduction of 40% in fines and 20% of default interest; or

(iii) in 60 installments, with a reduction of 20% in fines and 15% of default interest.

The law also allows taxpayers to cumulate these discounts with the fines reduction provided by the articles 70, 70-A, 70-B and 70-C of Law 2.657/96, which are:

(i) 50% in the case of payment within 30 days counted from the date of the knowledge of the Tax Assessment;

(ii) 20% in the case of payment within 30 days counted from the knowledge of the 1st administrative instance’s decision;

(iii) 10% in the case of payment within 30 days counted from the knowledge of the 2nd administrative instance’s decision;

(iv) 90% and 70% for fines for not complying with ancillary obligations, if these have been settled within 30 days or before the tax inspection, respectively; and

(v) 50% in penalties for infractions committed by micro and small enterprises, defined by Federal Complementary Law 123/2006.

Procedure for enrollment of debts not registered in State outstanding debtors list

Before the enrollment into the program, taxpayers should be aware of all pending decisions and give up administrative defenses. Taxpayers with access to the Fisco Fácil Portal should be aware of the notifications in the portal and electronically give up administrative defenses.

If the taxpayer does not have access to the Fisco Fácil Portal or has opted to partially withdraw from the administrative defenses, it is necessary to file the waiver personally in the State Revenue Office and, in the same act, to require the enrollment of debts in the Complementary Law 182/2018 program.

For taxpayers with access to the Fisco Fácil Portal, the request must be formalized exclusively through the website for the cases of (i) tax assessment with fine; (ii) infraction notices with only fines; (iii) declared debts of ICMS regarding own operations; (iv) declared debits of ICMS regarding internal tax substitution; (v) declared debts of ICMS regarding interstate replacement; and (vi) declared debits of ICMS regarding differential of rate, regulated by EC nº 87/2015. In the case of other debts, the enrollment must occur through a petition filed with the designated State Revenue Office.

The taxpayer who does not have access to the electronic portal must submit a request for enrollment in the designated State Revenue Office, according to the form that will be available in Sefaz website, for each establishment’s state registry.

After the enrollment, taxpayers will receive a proceeding number to follow up the status of their payment in installments program.

For lump sum payments, the deadline is November 30, 2018. For installment payments, the first installment must be paid in November 30, 2018, and the other installments will expire on the 10th day of each month. Payments will be made exclusively at Bradesco Bank.

There will be no charge for state service fees in cases of installments requested through the Fisco Fácil Portal and in requests for lump sum payments.

Procedure for enrollment of debts registered in State outstanding debtors list

Enrollment of debts registered in the State outstanding debtors list into the special payment program, in the case of lump sum payment, may be made by the following means:

(i) through a form issued in the State Attorney’s Office website, filed with Central State Attorney's Office or designated Regional State Attorney's Office, and the payment form (DARJ), which is payable exclusively in the Bradesco Bank, within a maximum period of 5 (five) days or until the last working day of the month, whichever occurs first;

(ii) directly on the website of the State Attorney's Office, with the issuance of the payment form (DARJ), which is payable exclusively in the Bradesco Bank, within a maximum period of 5 (five) days or until the last working day of the month, whichever occurs first; or

(iii) by agreement with the correspondence which may be forwarded by PGE, by payment in a lump sum payment, exclusively in the Bradesco Bank, within the deadline set forth in the payment form (DARJ) sent.

Enrollment of debts registered in State outstanding debtors list into the special payment program, in the case of installment payment, will be done exclusively via a form issued in the State Attorney’s Office website, filed with Central State Attorney's Office or designated Regional State Attorney's Office. In addition to the referred form, the taxpayer must submit the following documents:

(i) power of attorney with specific powers of confession, in the case of an application by a proxy;

(ii) consolidation of the company's social contract;

(iii) National Registry of Legal Entity (CNPJ) card;

(iv) proof of establishment for companies and proof of residence for individuals;

(v) proof of the payment of the first installment, through the DARJ issued by the State Attorney’s Office website;

(vi) a copy of the petition waiving the right on which an action is based or any judicial measure referring to the debit enrolled;

(vii) a copy of the declaration for be made aware of the existence of Tax Enforcement, in accordance with the form established by the State Attorney’s Office;

(viii) Assumption of Responsibility issued in the State Attorney’s Office website, duly signed by the company’s administrator or by his proxy.

The amount of legal fees due to the Public Attorneys of the State of Rio de Janeiro in the case of enrollment into the program will be:

(i) for the debts enrolled into the State outstanding debtors list which are not objects of tax enforcement: 3% for a lump sum payment and 6% for installment payments; and

(ii) for the debts which is being collected in court: 4% for a lump sum payment and 8% for installment payments.

These amounts relate only to the enrollment into the State outstanding debtors list or to the filing of the Tax Enforcement. In addition to these amounts, the fees fixed in other proceedings whose objects are the debts paid will be due in full.

The State Attorney’s Office System shall formalize the liquidation of the installment payment, when the revenue from the value of each of the installments is confirmed.

General terms and conditions

Taxpayers can use LC 182/2018 to pay (i) the remaining amounts of the consolidated tax debts of previous payment in installments programs, except for those related to other amnesty or remission programs; (ii) the ICMS related to tax substitution; and (iii) fines resulting from non-compliance with ancillary obligations.

It is expressly prohibited the payment of tax debts enrolled into the program with the conversion of judicial deposits into State’s revenue. Therefore, taxpayers must have to pay the amount due with the relevant reduction stated in the amnesty program and then request the withdrawal of the judicial deposit.

The enrollment into the amnesty program implies in the irrevocable and irreversible confession of the tax debt, expressly renounces of any defense or administrative or judicial appeal as well as the withdrawal of those already filed. If there is an administrative proceeding in progress regarding the debt, the taxpayer must have to inform the waiver of defenses and appeals within 30 days counting from the enrollment into the amnesty program.

The enrollment into the amnesty program requires the regularity of the taxpayer over the entire installment period. Taxpayers can be excluded in case of (i) non-payment of three consecutive installments; (ii) existence of unpaid installment for more than 90 days; and (iii) default or irregularity of any other principal or ancillary obligations due for more than 60 days, which will be regulated by a Joint Resolution to be issued by State Revenue Office and State Attorney’s Office.

The taxpayers can be notified about issues involving the enrollment of debts by electronic means, through the Taxpayer's Electronic Domicile (DEC) or by the e-mail provided in the enrollment form.