The new fixed asset accounting criteria and tax consequences
Law No. 11.638, of 28.12.2007, amended and repealed provisions of Law No. 6404 of December 15, 1976, and Law 6385, of December 7, 1976, and extended to all societies provisions related to the preparation and dissemination of financial statements.
Although the law induces us to believe that international accounting standards are intended only to large companies, though not incorporated in the form of joint stock companies, it is worth proving that these rules apply to all companies.
By reading article 3 of Law 11.638/2007, it can be observed that "it is applied to large companies, though not incorporated in the form of joint stock companies, the provisions of Law No. 6404 of December 15, 1976, on bookkeeping and financial statement elaboration and the obligatoriness of independent audit by an auditor registered with the Securities and Exchange Commission ".
Still, paragraph 1 states that "it is considered large for the exclusive purposes of this Act, a company or group of companies under common control that has in the previous fiscal year, total assets exceeding R$ 240,000,000.00 (two hundred forty million Brazilian Reals) and annual gross revenue exceeding R$ 300,000,000.00 (three hundred million Brazilian Reals). "
Regarding limited liability companies, regulated by the Civil Code, Article 1179 provides that "the entrepreneur and business associations are required to follow an accounting system, mechanized or not, based on uniform bookkeeping, in correspondence with the respective documentation and also to raise the annual balance sheet ". Even if limited partnerships do not have legal status ruled by Law 6.404/1976, the Civil Code provisions do not provide for more detailed accounting standards. Because of such absence, it shall be observed the provisions of Law of Stock Corporations (Law 6.404/1976).
In addition, shareholders may state in the articles of incorporation the supplementary regency of limited liability by the rules of the corporation, requiring the application of accounting rules established by Law 6.404/1976.
Even by virtue of commercial relationships, financial lending, financing, public bids, investor requirements or other issues, compliance with accounting practices to international standards (IFRS) can be required. It is worth noting that the Accounting Pronouncements (CPCs) were designed and decided by the Federal Accounting Council (CFC).
Therefore, limited liability partnerships, even when not classified as large companies, are not excluded from the rules of the new Brazilian accounting standards.
Accounting standards established by Law 11.638/2007 should be applied and observed by all companies established in the country regardless of corporate type.
Given the accounting changes introduced by Law 11.638/2007, Law 11.941/2009 established the Transitional Tax Regime (RTT – Regime Tributário de Transição) for calculation of income tax, which deals with tax adjustments arising from new accounting methods and criteria, in order to seek tax neutrality.
RTT became mandatory from the calendar year 2010 on and shall remain in force until the entry into force of a law that controls tax effects of new accounting methods and criteria, aiming at tax neutrality. It should be applied to the calculation of Income Tax (IRPJ), Social Contribution on Net Profit (CSSL), Contribution to PIS/PASEP and Contribution to Social Security Financing (COFINS).
In conclusion, the new accounting methods should be neutralized at the time of calculation of the taxes mentioned above. One of the changes in accounting criteria is the treatment for fixed assets and the criterion for its depreciation, covered by CPC 27 which will be the object of our comments.
CPC 27 prescribes the accounting treatment for fixed assets, so that users of the financial statements can discern information about an entity's investment in its fixed assets, as well as mutations in this asset. The main points to be considered in accounting for fixed assets are the recognition of assets, the determination of their carrying amounts and the amounts of depreciation and impairment losses to be recognized in relation to them.
In his text, CPC provides that "the depreciable amount of an asset should be determined in a systematic way throughout its useful life." The depreciation method used reflects the pattern of consumption of future economic benefits. For businesses to depreciate fixed assets, careful analysis of the property is required.
We know that the change in accounting principle for asset depreciation directly reflects the profit of the corporation. However, it should not impact actual profit and the calculation basis of social contribution, since the RTT ensures such tax neutrality.
Before the new accounting rules introduced by Law 11.638/2007, the corporate adoption of quotas depreciation recorded in bookkeeping as determined in Normative Ruling of the Federal Revenue 162 of 31/12/98 was common practice.
The practice stemmed from the provision of § 3, art. 57 of Law 4.506/1964, which states that "the administration of the Income Tax shall periodically publish the useful life term admissible from 1st January 1965, under normal or average condition, for each kind of good, as long as it is assured to the taxpayer the right to compute the effectively adequate quota to depreciation of their assets, provided a proof of adequacy when adopting different rate ".
By legal provision above as well as by art. 310 of Decree 3.000/1999 (Income Tax Regulations), the share of depreciation will be applied based on the period of expected economic use of the asset by the taxpayer, that is: (a) through depreciation quota provided under IN / SRF 162/1998, or (b) through depreciation quota which provides proof of adequacy.
Clearly, the tax law has provided for the adoption of other criteria for depreciation of fixed assets, in addition to the quotas established by the Internal Revenue Service of Brazil.
Therefore, it is important to clarify that the legal entity that adopted depreciation quotas under different criteria to those set forth in the administrative rules of the Internal Revenue Service of Brazil, already had the shield on the deductibility of expenses for the calculation of Income Tax. That is, for this case there is nothing to talk about additions or exclusions on the basis of calculating the income tax and social contribution to ensure tax neutrality because the tax law already provided such a procedure.
It will be up to the taxpayer to analyze the depreciation methods adopted before the enactment of Law 11.638/2007 and tailor them to accounting rules and tax laws.
* Lygia Caroline S. Carvalho is tax consulting manager at Moore Stephens Auditors and Consultants (www.moorestephens.com.br)