A few months have passed since the enactment of the law establishing the RERCT (Regime of Exchange and Tax Regularization). Yet, doubts persist regarding what must be declared, especially to secure the sought-after criminal amnesty, even after the publication of regulatory guidelines like Normative Instruction 1627/16 by the Federal Revenue Service and Circular 3.787/16 by the Central Bank. The Federal Revenue Service’s publication of the “Dercat – Questions and Answers” clarified some uncertainties, such as the non-requirement to tax amounts corresponding to income losses and assurances against tax audits for amounts beyond the statute of limitations. However, it introduced new interpretative frameworks, particularly concerning what has become known as the “film,” which involves taxing amounts consumed during the statute of limitations. This new interpretation has profound implications for criminal law.
The Federal Revenue Service, through its “Questions and Answers,” underscores the importance of observing the statute of limitations for crimes eligible for amnesty under the RERCT. This might lead taxpayers to conclude they need to declare all amounts received over 12 to 16 years, depending on the crime. However, this interpretation seems flawed for several reasons.
First, reconstructing the historical record of received amounts is often materially impossible since foreign banks typically provide account statements for only five to ten years. Taxpayers face an impractical requirement of compliance due to this limitation in accessing necessary documentation.
Regarding tax-related crimes, the Federal Supreme Court’s Binding Precedent No. 24 states: “There is no material crime against the tax order under Article 1, items I to IV, of Law No. 8,137/90, before the definitive assessment of the tax.” Thus, even if one assumed that criminal amnesty required declaring amounts outside the statute of limitations, prosecution would encounter an insurmountable obstacle: the lack of a tax assessment, which is essential for constituting a definitive tax debt and, consequently, for establishing the crime.
Crimes related to foreign exchange violations, such as undeclared foreign accounts, pertain solely to the Central Bank’s foreign exchange controls. Hence, obligating taxpayers to declare amounts outside the statutory limit solely to gain amnesty for such crimes appears unjust and arbitrary.
The Central Bank reinforced this stance in its August 5, 2016, Communiqué No. 29,789/2016, clarifying that no amended declarations are required for periods before December 31, 2014. This underscores the distinction between tax-related declarations to the Federal Revenue Service and those needed for foreign exchange control.
Moreover, prior to 2013, the Central Bank required only the historical cost of assets, not their market value, in its declarations. For many taxpayers, this value is far below the market value demanded for the 2014 regularization process, further complicating the compliance landscape.
What began as a “snapshot” of December 31, 2014, transformed into a 16-year “film,” but now resembles a five-year “short film.” Taxpayers must not only declare their 2014 assets but also reconstruct and declare all consumed amounts within the statute of limitations for tax purposes.
This shifting narrative creates legal uncertainty, particularly regarding criminal liability, discouraging participation in the program at a time when federal and state governments urgently need resources. The risk of further interpretative changes exacerbates the issue. Adhering to the RERCT involves confessing to crimes—a significant decision. With only a few months left for compliance, taxpayers hope this “short film” remains unchanged, culminating in a happy ending for all involved.