PRESUMED PROFIT - PROPERTY SALE ACTIVITY
By Luiz Carlos Benner
Consultation Solution 4.028 was published of the Federal Revenue Regional Superintendence 4th Region, of July 28 (DOU of 3/8/2023), which deals with the percentage of presumed profit to be applied to revenues arising from the sale of real estate, carried out by a legal entity that actually exercises and of real estate activity law. The query focuses on the date of acquisition of the property, object of the sale, when it occurs before the activity of land allotment, real estate development and sale of properties is included as one of the corporate purposes, listed in its bylaws or articles of incorporation and CNAE in the Federal Revenue . The consultation reaffirmed the understanding of what was already provided for in Laws 9.249/95 and 9.430/96 by various tax specialists. It is not the date of acquisition of an asset that should define its taxation, but the set of scenarios: operational, legal and tax, in which this organization finds itself, at the time of the sale of the asset.
This opens an interesting precedent and can generate the possibility of various tax planning, especially for companies that opted for taxation of IRPJ based on presumed profit and intend to sell properties, registered in their permanent assets and that, in many cases, with appreciation that could generate a high capital gain value.
Initially, we have to draw attention to the fact that the query solution applies exclusively to the company that carried out the query. Having clarified this point, we can focus on the possibility of an interesting tax planning and draw attention to some risks. Every time an organization uses a legal basis to seek some tax reduction, it must pay attention not only to the legal basis, but to the business purpose. Called essence over form, ensuring an economic foundation, which is not just tax reduction, is what guarantees the robustness of a tax planning. If an organization, which opted for presumed profit, wants to sell a property, it needs to take some precautions such as: Include in the list of its activities, the activity of subdivision of land, real estate development and sale of properties; transfer these properties to your inventory and, finally, not limit yourself to a single operation, especially if that property has been part of your assets for a long time. To ensure that this operation cannot be interpreted as the simple sale of fixed assets, this activity must be continued.
Every tax planning, be it simple or complex, involving structured operations, will only be sustained if there is an economic foundation that sustains it. Seeking more economical forms of taxation is not illegal and should be part of any company's agenda.
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