Law n. 12,794 was published on April 3, 2013, and changed provisions regarding the social security contribution of industrial and services companies, to ensure the depreciation of assets for Income Tax purposes, to establish the Special Regime of Incentive to the Infrastructure Development of the Fertilizer Industry, to change the PIS/COFINS levied on orange sales, among others.
This law resulted from the conversion of Provisional Measure n. 582/2012, and originated from Draft Bill of Conversion n. 01/2013.
Among the main changes is the veto of the provision that included sectors such as passenger rail and metro transportation, companies providing hospital services, in the list of activities in Law n. 12.546/2011 subject, until December 31, 2014, to social security contribution at a 2% rate over the gross revenue, excluding cancelled sales and unconditional discounts granted. These activities were not included either in the provision that determines the social security contribution at a 1% rate until December 31, 2014 over the gross revenue, excluding cancelled sales and unconditional discounts granted.
Moreover, this rule approved a provision that ensures the accelerated depreciation calculated by adding the depreciation rate usually admitted to legal entities taxed based on real profit. Such depreciation applies to new assets or assets that were ordered by means of agreements executed between September 16 and December 31, 2012.
The accelerated depreciation will be calculated as of January 1st, 2013, and the total accumulated depreciation cannot exceed the acquisition cost of the goods.
This Law established a Special Regime of Incentive to the Infrastructure Development of the Fertilizer Industry (Regime Especial de Incentivo ao Desenvolvimento da Infraestrutura da Indústria de Fertilizantes – REIF), which provides for the suspension of the PIS/COFINS on sales or importation of services, new machines and construction materials to be used in infrastructure expansion to produce fertilizers. Additionally, the benefit comprises a suspension of the IPI imposed on the acquisition of these goods by a REIF beneficiary from an industry or from an establishment deemed as industrial by the legislation. Such regime also suspends the PIS/COFINS imposed on the revenue related to the lease of machines used to execute the project.
The law also concerns PIS/COFINS in the agribusiness industry. The PIS/COFINS imposed on revenues consequent of the sales of orange used to produce orange juice to be exported has been suspended. In this case PIS/COFINS regular credits are disallowed to the seller of oranges. Additionally, the legal entity subject to the non-cumulative regime for PIS/COFINS purposes is entitled to a presumed credit calculated over the acquisition cost related to orange juice to be exported. This benefit does not apply to the exporting trading company, which carries out the mere resale of goods to be exported.
Finally, it should be pointed out that the law did not approve provisions that increased the maximum amount of the total gross revenue of the legal entity to be eligible to the taxation based on the presumed profit. The Draft Bill of Conversion provided for an amount equal to or lower than seventy-two million reais (R$ 72,000,000.00), or six million reais (R$6,000,000.00) multiplied by the number of months of activity in the previous calendar year. Thus, the revenue limits of forty-eight million reais (R$ 48,000,000.00), or to four million reais (R$ 4.000.000,00) were maintained.
(Law n. 12.794, Apr. 02, 2013, DOU-I, Apr. 03, 2013. Available at: <http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2013/Law/l12794.htm>. Access in: April, 2013).