Neutralidade tributária e creditamento excessivo no IVA brasileiro

Abstract

The 2023 Brazilian tax reform aimed to improve consumption tax by introducing the Value Added Tax (VAT). Its main characteristic is neutrality, meaning the least possible interference in the economic activity organization and consumption decisions. In order to do so, it introduced the state level Goods and Services Tax (IBS) and the Federal Contribution on Goods and Services (CBS), which are collected through a staged process, as they allow the deduction of credits derived from taxation of previous transactions. This paper aims to investigate the vulnerability of this new system to the breach of neutrality caused by the excess of input credits, as well as to offer contributions to address the identified flaws. The main hypothesis is that the Brazilian reform may have allowed credits in excess, in a disproportionate reaction to the previous system, paving the way for various deviations from neutrality. The first chapter is based on the investigation of the concecpt of neutrality in its vertical and horizontal dimensions, respectively meaning uniform effective tax rate throughout the production chain and equal taxation of similar products, as well as on the defence of the staged collection process as a technique rather than a tax principle. Three types of input credits that violate neutrality are identified, because they exceed tax paid in previous transactions: credit for tax paid on acquisitions unrelated to the output taxable transaction (type 1); credit for tax unpaid in an earlier transaction (type 2); and fictitious credit, granted by law, exceeding tax paid (type 3). The second and third chapters are dedicated to the excessive crediting of VAT in the European Union and several countries, summarizing the solutions adopted internationally. Next, an overview of the crediting issues in the previous Brazilian tax system is presented, in order to enable overcoming its flaws and avoiding deviation from the objectives of the tax reform. Finally, chapter 5 critically analyzes the IBS and CBS rules based on the concepts and parameters outlined in the previous chapters, largely confirming the initial hypothesis. On the other hand, we suggest that the flaws can be overcome by measures such as (i) introduction, by law, of an open definition to the expression “private use”; (ii) submission of input tax credits to payment of tax due in previous transactions, combined with the use of intelligent collection tools such as split payment and reverse charge; (iii) strict regulation of tax benefits, especially of reduced VAT rates and presumed input credits, as well as periodic assessment of their cost-benefit relation and possible revocation.