By means of COSIT Consultation Solution No. 34/2024, published in the Official Gazette of April 1, 2024, the Brazilian Internal Revenue Service expressed its understanding of the possibility of recovering social security credits involving undue payments relating to both the period before and after eSocial/DCTFweb.
According to the guidance issued in the aforementioned Consultation Solution, the prior need to rectify the ancillary obligations underlying the credit right recognized by a final and unappealable court decision was clarified, both in relation to periods before and after the implementation of eSocial, as follows:
(i) With regard to Social Security Contribution credits recognized by a final and unappealable court decision, as a result of the payment of said contributions, informed in GFIPs prior to the implementation of the obligation to provide information in eSocial, for the purposes of offsetting them, it is necessary to rectify the GFIPs corresponding to the months relating to the origin of these credits to be offset.
(ii) Social Security Contribution credits recognized by a final and unappealable court decision, as a result of the payment of said contributions during the period in which it is mandatory to provide information in eSocial and DCTFWeb, require, for the purposes of offsetting, the rectification of the information declared in eSocial and DCTFWeb, corresponding to the months related to the origin of these credits to be offset.
(iii) The offsetting of Social Security Contribution credits arising from a final and unappealable court decision requires the Taxpayer, pursuant to article 102 of RFB Normative Ruling No. 2,055, 2021, to have these credits previously cleared by the Brazilian Internal Revenue Service Office (DRF) or by the RFB Specialized Office with jurisdiction over its tax domicile. It should be noted that, according to art. 108 of RFB Normative Ruling No. 2,055, of 2021, the aforementioned procedure for prior authorization of credits arising from a final and unappealable court decision is not applicable to the offsetting of Social Security Contributions referred to in Section VII of Chapter V of RFB Normative Ruling No. 2,055, of 2021.
(iv) Finally, the taxpayer who calculates Social Security Contribution credits resulting from a final and unappealable court decision may use them to offset their own debts, due or falling due, related to taxes administered by the RFB, through an Offset Statement, using the PER/DCOMP program, or if it is impossible to use it, using the Offset Statement form, contained in Attachment IV, of RFB Normative Ruling No. 2,055, of 2021, with the exception of the offsetting of Social Security Contributions by taxpayers who do not use eSocial to calculate the contributions referred to in articles 2 and 3 of Law No. 11,457, of 2007, which, in this case, must report the offset in a GFIP corresponding to the month in which it was made.
Check out the full text: SC Cosit nº 34-2024.pdf
We would like to point out that the Internal Revenue Service has been disallowing all offsetting that was carried out without the proper GFIP and eSocial rectifications, so, given the repercussions of the issue, we are counting on a partner to carry out these rectifications.
