PRESUMED PROFIT — PROPERTY SALE ACTIVITY
By Luiz Carlos Benner
Query Solution 4,028 has been published of the Regional Superintendence of the Federal Revenue Service 4th Region, dated July 28 (DOU of 3/8/2023), which deals with the percentage of presumed profit to be applied to revenues deriving from the sale of real estate, carried out by legal entities that carry out de facto real estate activities by law. The consultation focuses on the date of the acquisition of the property, subject to the sale, when it occurred before the land allotment, real estate development and sale of real estate was included as one of the corporate objects, listed in its statute or articles of association and CNAE in the Federal Revenue Service. The consultation reaffirmed the understanding of what was already provided in Laws 9,249/95 and 9,430/96 of several tax attorneys. It is not the date of the acquisition of an asset that must define its taxation, but rather the set of scenarios: operational, legal and tax, in which that organization is located, at the time of the sale of the asset.
This sets an interesting precedent and may create the possibility of various tax plans, especially for companies that opted to tax their personal income tax on presumed profit and intend to sell properties, registered in their permanent assets and which, in many cases, with valuation that could generate a high amount of capital gain.
Initially, we have to draw attention to the fact that the consultation solution applies exclusively to the company that carried out the consultation, however, it serves perfectly to have a basis on what the Internal Revenue Service understands this topic. Having clarified this point, we can focus on the possibility of interesting tax planning and draw attention to some risks. Every time an organization uses a legal basis to seek a reduction in taxation, it must stick not only to the legal basis, but to the business purpose. Called essence about form, guaranteeing an economic basis, other than just tax reduction, is what guarantees the robustness of tax planning. If an organization, which opted for presumed profit, wants to sell a property, it must take certain precautions, such as: Include in the list of its activities, the activity of land allotment, real estate development and sale of real estate; transfer these properties to its inventory and, finally, not be limited to a single operation, especially if that property was already part of its assets for a long time. To ensure that this transaction cannot be interpreted as the simple sale of a fixed asset, there must be a continuity of this activity.
Every tax plan, whether simpler or more complex, involving structured operations, will only be supported if there is an economic foundation that supports it. Seeking more economical forms of taxation is not illegal and should be part of any company's agenda.
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