The Emergency Program for the Resumption of the Events Sector (Perse) established by Law No. 14,148/2021, as amended by Law No. 14,592/2023, brought a package of fiscal rules aimed at the events and tourism sector to offset the effects of isolation during Covid-19.
One of the main points was the establishment of a 0% rate for federal taxes (IRPJ, CSLL and PIS/Cofins) for a fixed period of 60 months, as long as the companies met a series of requirements.
From the justifications of Perse Bill No. 5,638/2020, inspired by the actions of other countries around the world, the purpose of the program was to institute “a set of measures that aim to guarantee the survival of the sector — which needs to continue honoring its expenses — until its activities are resumed without restrictions, as well as generating economic capacity so that once it resumes operations, the sector will be able to meet the necessary working capital, as well as the margin to cover all the debt incurred in the period in question. who was paralyzed.”
Although a crucial role is still being played in the recovery of these sectors, on 12/28/2023, seeking resources to adjust the fiscal deficit, the federal government, through Provisional Measure No. 1,202/2023, terminated the program early. Thus, abruptly interfering with the planning and commitments made by companies that trusted the legislation and fulfilled the framework requirements for the enjoyment of Perse during the five years.
Free will?
In addition to all the discussions regarding the economic consequences and losses for companies resulting from the early revocation in the midst of the biggest crisis ever experienced by the sector, from a legal perspective, some important questions arise, among them: could the reduction of tax rates to 0% of Perse be revoked before the deadline set by law? The old discussion is revived: can tax exemptions be revoked at will and at any time?
The “0% rate” is equated to an “exemption” by the legal system. Article 178 of the National Tax Code states that the exemption granted for a fixed period and depending on certain conditions cannot be revoked or modified by law at any time.
STF Precedent No. 544 reinforces the acquired right of the taxpayer benefiting in such situations. The Law, by establishing clear conditions such as (i) the exercise of economic activities through specific “Cnaes” and (ii) regularity before the Registry of Tourist Service Providers (Cadastur), as well as providing for a certain period (of 60 months) , sets up Perse as an exemption that gets legal protection against any revocation.
Jurisprudence
The jurisprudence of the higher courts recognizes, in numerous cases, that tax benefits granted for a specific period are irrevocable if the associated conditions change the taxpayer’s conduct to take advantage of the benefit.
In this sense, both the requirements related to Cnae and regular Cadastur — which in themselves would characterize a conditional exemption —, as well as planning, adopted conduct, investment commitments made, jobs maintained/recovered by companies due to the cash capacity generated by Perse reflect onerous conditions that make the irrevocability of the program indisputable.
Aside from this, it should be noted that small companies in Simples Nacional left the simplified taxation regime to join Perse due to the regulatory prohibition.
Furthermore, for real profit companies, the Federal Revenue required control of the benefit based on operating profits (through revenue segregation), reinforcing yet another counterpart to this exemption.
Going further, it is still possible to maintain that the onerous nature of the exemption was realized even before it was granted, as these companies had to bear very serious losses caused by the pandemic and, directly and indirectly, by the isolation measures imposed by the Public Authorities.
If that weren’t all, the big problem is that early revocation violates basic constitutional principles of tax law, such as legal certainty, perfect act and protection of trust.
The consolidation of Perse before Congress was marked by at least three crucial events: conversion of the PL, overturn of the presidential veto and the amendment of Law No. 14,592. In this context, the protection of trust in Perse, by the deadline established by law (2027), is essential for the stability of the Brazilian legal system and for the preservation of public and private interest.
In enforcing these principles, the Judiciary has always done well. The STJ, on several occasions, highlighted the importance of predictability in fiscal policies by preventing the premature revocation of a fixed-term exemption.
When analyzing the early repeal of the 0% PIS/Cofins rate by the government within the scope of the Lei do Bem, that Court maintained the benefit to eligible taxpayers, reinforcing that economic activity cannot be treated as something improvised and free of plans, given that Business commitments should not be subject to unilateral or inconsequential breaches.
Finally, even if the revocation of Perse were legal (which it is not), it is worth remembering the necessary compliance with article 23 — introduced by the changes to Law 13,655/2018 at Lindb — in these cases. By reinforcing the legal security of the system at the infra-constitutional level, the norm expressly established the need for a transitional regime when new duties are imposed by new interpretation or guidance.
The application of the regulations must guarantee that, through a period of transaction, the affected companies can adjust proportionally, equitably and efficiently to the new requirements, without prejudice to general interests, which definitely did not happen with the text of MP 1,202/23.
Without a doubt, the repeal of Perse will result in a considerable judicialization of the issue. This results, contrary to what was advocated by the government, in yet another financial burden on the public coffers, which will have to bear the costs of several legal demands.