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The new legislation aims to regulate the assignment of credit rights originating from tax and non-tax credits of federative entities and introduces extrajudicial protest as a cause for interrupting the statute of limitations.

From the Editors

 

Wednesday, July 3, 2024

 

Updated at 13:02

 

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The President of the Republic,  , sanctioned LC 208/24 , which amends Law 4,320/64 and Law 5,172/66 (National Tax Code). The new legislation aims to regulate the assignment of credit rights originating from tax and non-tax credits of federative entities and introduces extrajudicial protest as a cause for interruption of the statute of limitations.

 

Assignment of credit rights

 

The main new feature introduced by the new law is the inclusion of art. 39-A in law 4,320. This provision allows the Union, States, Federal District and municipalities to transfer credit rights, including those registered in active debt, to legal entities under private law or to investment funds regulated by the CVM - Securities and Exchange Commission.

 

The assignment must preserve the original nature of the credit, maintaining its guarantees and privileges, and ensure that the criteria for updating and correcting values ​​remain unchanged. The prerogative of judicial and extrajudicial collection of credits remains with the Public Treasury. The assignment is definitive and exempts the assignor from future liabilities, limited to the right to receive the established and recognized credit.

 

The operation must be authorized by specific law and by the competent authority and must occur up to 90 days before the end of the term of office of the head of the Executive Branch, unless full payment occurs after that date. At least 50% of the capital revenue from these operations must be allocated to social security expenses and the remainder to investments.

 

 

The law was sanctioned by President Lula. 

Changes in CTN

 

LC 208 also amends articles 174 and 198 of the National Tax Code. Extrajudicial protest is now recognized as a reason for interrupting the statute of limitations of tax credits. In addition, the tax administration now has the prerogative to request registration and asset information of tax credit taxpayers from public or private entities, facilitating the sharing of databases.

 

Final dispositions

 

Assignments of credit rights made prior to the publication of this law continue to be governed by the specific legal and contractual provisions in force at the time of their execution. The new law shall come into force on the date of its publication.

 

Read the full law:

 

_______

 

COMPLEMENTARY LAW Nº 208, OF JULY 2, 2024

 

Amends Law No. 4,320 of March 17, 1964, to provide for the assignment of credit rights originating from tax and non-tax credits of the entities of the Federation, and Law No. 5,172 of October 25, 1966 (National Tax Code), to provide for extrajudicial protest as a cause for interruption of the prescription and to authorize the tax administration to request information from public or private entities and bodies.

 

THE PRESIDENT OF THE REPUBLIC I hereby make it known that the National Congress decrees and I sanction the following Complementary Law:

 

Art. 1 Law No. 4,320 of March 17, 1964, shall come into force with the addition of the following art. 39-A:

 

"Art. 39-A. The Union, the State, the Federal District or the Municipality may transfer, for consideration, under the terms of this Law and of a specific law that authorizes it, rights originating from tax and non-tax credits, including when registered in active debt, to legal entities under private law or to investment funds regulated by the Securities and Exchange Commission (CVM).

 

§ 1º For the purposes of the provisions of the caput, the assignment of credit rights must:

 

I - preserve the nature of the credit from which the transferred right originated, maintaining the guarantees and privileges of that credit;

 

II - maintain unchanged the criteria for updating or correcting values ​​and the amounts represented by the principal, interest and fines, as well as the payment conditions and due dates, deadlines and other terms originally agreed between the Public Treasury or the public administration body and the debtor or taxpayer;

 

III - ensure that the Public Treasury or the public administration body has the prerogative to judicially and extrajudicially collect the credits from which the transferred rights originated;

 

IV - be carried out through a definitive transaction, exempting the transferor from liability, commitment or debt that results in an obligation to pay the transferee, so that the obligation to pay the transferred credit rights remains, at all times, with the debtor or taxpayer;

 

V - cover only the autonomous right to receive credit, as well as only apply to the product of credits already constituted and recognized by the debtor or taxpayer, including through the formalization of installments;

 

VI - be authorized, in the form of a specific law of the entity, by the head of the Executive Branch or by an administrative authority to whom this power is delegated;

 

VII - be carried out up to 90 (ninety) days before the end date of the term of office of the head of the Executive Branch, except in the case where full payment for the assignment of credit rights occurs after that date.

 

§ 2º The assignment of credit rights will preserve the calculation basis of constitutional obligations in the financial year in which the taxpayer makes the payment.

 

§ 3º The assignment of credit rights may not include percentages of credit that, by virtue of constitutional rules, belong to other entities of the Federation.

 

§ 4º The assignments of credit rights carried out under the terms of this article do not fall within the definitions set out in items III and IV of art. 29 and art. 37 of Complementary Law No. 101 of May 4, 2000 (Fiscal Responsibility Law), and are considered a definitive sale of public assets.

 

§ 5º The assignment of tax credit rights is considered to be an activity of the tax administration, and the prohibition contained in item IV of art. 167 of the Federal Constitution does not apply to credits originating from taxes, in compliance with §§ 2º and 3º of this article.

 

§ 6º The capital revenue resulting from the sale of assets referred to in this article shall comply with the provisions of art. 44 of Complementary Law No. 101, of May 4, 2000 (Fiscal Responsibility Law), and at least 50% (fifty percent) of this amount must be allocated to expenses associated with the social security system, and the remainder to investment expenses.

 

§ 7º The assignment of credit rights referred to in this article may be carried out through a special purpose company, created for this purpose by the assigning entity, in which case the bidding process is waived.

 

§ 8º The financial institution controlled by the transferor federated entity is prohibited from:

 

I - participate in a primary acquisition operation of the credit rights of that entity;

 

II - acquire or negotiate credit rights of that entity in the secondary market;

 

III - carry out an operation backed or guaranteed by the credit rights of that entity.

 

§ 9 The provisions of § 8 of this article do not prevent the public financial institution from participating in the financial structuring of the operation, acting as a service provider.

 

§ 10. The assignment of credit rights originating from administrative installments not registered as active debt is limited to the stock of credits existing up to the date of publication of the respective federal, state, district or municipal law that grants legislative authorization for the operation."

 

Art. 2º Articles 174 and 198 of Law No. 5,172, of October 25, 1966 (National Tax Code), shall come into force with the following wording:

 

"Art. 174 ...................................................................

 

Single paragraph. .......................................................

 

....................................................................................................

 

II - by judicial or extrajudicial protest;

 

............................................................................(NR)

 

"Art. 198 ......................................................................

 

......................................................................................

 

§ 4º Without prejudice to the provisions of art. 197, the tax administration may request registration and asset information of a tax credit taxpayer from public or private bodies or entities that, including by legal obligation, operate registers and records or control transactions involving assets and rights.

 

§ 5º Regardless of the request provided for in § 4º of this article, the bodies and entities of the direct and indirect public administration of any of the Powers will collaborate with the tax administration with a view to sharing databases of a cadastral and patrimonial nature of their administered and supervised entities." (NR)

 

Art. 3º The assignments of credit rights carried out by the Union, the States, the Federal District and the Municipalities prior to the publication of this Complementary Law will remain governed by the respective specific legal and contractual provisions in force at the time of their execution.

 

Art. 4 This Complementary Law shall come into force on the date of its publication.

 

Brasilia, July 2, 2024; 203rd of Independence and 136th of the Republic.

 

link: https://www.migalhas.com.br/quentes/410581/lei-introduz-mudancas-na-cessao-de-direitos-creditorios-e-no-ctn