Currently, companies opting for Normal Taxation Regimes cannot use the benefit. However, with the recent publication of SECINT/RFB Joint Ordinance No. 076/2022, it was opened up for Simples Nacional to join the Regime, making it possible to guarantee the benefits of the regime when importing inputs that will be used in the industrialization of a product that will be exported.
The new rule will come into force on October 1, 2022, during which time the amendment of article 24 of Complementary Law 123/2006 is expected, which precisely prohibits Simples Nacional from using or allocating any amount as a tax incentive, given that according to the hierarchy of norms, the Complementary Law overrides the aforementioned Ordinance.
Thus, as long as Article 24 of LC 123/2006 is not repealed, it will not be possible to adhere to the Comprehensive Drawback Regime.
Main new features of SECINT/RFB Joint Ordinance No. 076/2022:
Articles 4 (§1º, I) and 20 (§1º) guarantee the right of “Simples Nacional” companies to apply, respectively, the Suspension and Exemption modalities of the Drawback regime, as “beneficiaries of the regime”, in order to make purchases of goods to be applied (or equivalent to those previously applied) in the production of goods that will be (or have been) exported.
Import by C&O and by Order via Trading, with DRAWBACK:
Articles 9 and 27 stipulate that Drawback can be applied by the beneficiary of the scheme who is the “purchaser” in the case of Imports on Account and Order, but prohibits the application of the scheme in the case of Imports on Order.
Other points:
Among other points, the new Ordinance made a point of emphasizing the competence of SECEX and the RFB, with regard to granting and monitoring the fulfillment of the commitment to export (SECEX / SECINT), customs and tax control and inspection activities, to be carried out, at any time, that prove the effective fulfillment, by the beneficiary, of the requirements and conditions of this regime (RFB).
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UPDATES
We have been following several changes to one of the most widely practiced customs regimes in foreign trade, Drawback. The changes were initially promoted by SECINT/RFB Joint Ordinance No. 076/2022 and ratified by the recent SECEX Ordinance No. 216/2022.
There was still some doubt among taxpayers opting for Simples Nacional as to the interpretation of article 24 of Complementary Law 123/2006, which forbids Simples Nacional from using any amount as a tax incentive.
The answer came through the aforementioned Ordinance, which made changes to the wording of SECEX Ordinance No. 044/2020, detailing the use of the Regime by companies opting for Simples Nacional.
In force since 01/10/22, the new rules for the Drawback Regime include the possibility for micro-enterprises to join the Regime, however they will only be able to acquire inputs through imports, with purchases on the domestic market being prohibited, unlike what happens with the Drawback beneficiary opting for the Normal Regime.
