Decree No. 5649, Of 29 December 2005

Original Language Title: Decreto nº 5.649, de 29 de Dezembro de 2005

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DECREE NO 5,649, DE December 29, 2005.

Regulation the Special Acquisition Regime of Capital Bens for Exporter-RECAP Companies, which suspends the requirement of the Contribution to PIS/PASEP and COFINS, instituted by the arts. 12 a to 16 of the Law No 11,196 of November 21, 2005.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution conferring you the art. 84, inciso IV, of the Constitution, and in view of the willing in the arts. 12 a to 16 of the Act No 11,196 of November 21, 2005,

DECRETA:

CHAPTER I

DO RECAP

Art. 1º The Special Acquisition Regime of Capital Bens for Exporter-RECAP Companies will be applied in the form of this Decree.

Single Paragraph. RECAP suspends the requirement:

I-from Contribution to PIS/PASEP and COFINS incidents on gross revenue arising of the sale of capital goods, when acquired by legal person beneficiary of that scheme for incorporation to their immobilized asset ; and

II-of Contribution to PIS/PASEP-Import-Import and COFINS-Import incidents on capital goods imported directly by legal person beneficiary of that scheme for incorporation to their immobilized asset.

CHAPTER II

OF HABILITATION TO THE RECAP

Section I

From the Habilitation Obligation

Art. 2º Only the legal person previously empowered by the Office of the Federal Revenue Office is beneficiaries of RECAP.

Section II

Of Legal People who Can Rewant Habilitation

Art. 3º The habilitation that it treats the art. 2nd can only be required by:

I-preponderantly exporter legal person that it treats art. 4o;

II-legal person who takes on the export commitment of which it treats art. 5o; or

III-Brazilian naval shipyard, in the form of art. 6º.

Single Paragraph. You will not be able to qualify for RECAP the legal person:

I-which has its revenue, in whole or in part, submitted to the incidence regime cumulative Contribution to PIS/PASEP and COFINS ;

II-opting for the Integrated Tax Payment and Contributions System of the Microenterprises and Small Business (Simple) Companies ; or

III-which is irregular in relation to the tributes and contributions administered by the Secretary of the Federal Revenue And Revenue of the Revenue Forecast.

Art. 4º is considered preponderantly exporter, for the purpose of habilitation to RECAP, the legal person whose gross income arising from export, to the outside, in the calendar year immediately preceding that of the application for accession to the scheme, there is equal to or greater than eighty per cent of its total gross sales revenue of goods and services in the period, and that it assumes commitment to maintain that percentage of export during the two-year period-calendar.

Art. 5º The legal person at commencement of activity or who has not reached, in the year immediately preceding that of the application for membership of the scheme, the percentage of export revenue required in art. 4th may qualify for RECAP provided that it assumes commitment to earn, during the three-year period-calendar, gross revenue arising from exportation abroad of at least eighty per cent of its total gross proceeds of sale of goods and services.

Art. 6º The Brazilian shipyard can enable RECAP regardless of possessing gross export revenue to the exterior, in the form of the art. 4th, or to make the export commitment abroad during the three-year period-calendar, in the form of the art. 5º.

Section III

From the Exports Percent Apuration

Art. 7º The percentage of export referred to in Section II shall be ascertained by considering the average obtained, from the subsequent calendar year to the start of use of the goods acquired under RECAP, during the period of:

I-two years-calendar, in the case of art. 4º; and

II-three years-calendar, in the case of art. 5º.

§ 1º For the purpose of the calculation of the percentage that it treats the caput, in the determination of the value of the total gross revenue from sale of goods and services:

I-shall be considered the revenue of all establishments of the legal person ; and

II-you must delete the value of taxes and incident contributions on the sale.

§ 2º The start-of-use deadline referred to in the caput may not be more than three years, counted from the acquisition of the good.

CHAPTER III

DO CANCELLATION OF THE ENTITLEMENT TO THE RECAP

Art. 8º The cancellation of the enabling will occur:

I-on request ; or

II-of trade, in the hypothesis where the beneficiary did not satisfy or ceased to satisfy, or did not comply or fail to comply with the requirements for enabling the regime.

Single Paragraph. The legal person who has the cancelled habilitation will not be able to import or purchase in the domestic market with suspension of the Contribution's requirement for PIS/PASEP and COFINS.

CHAPTER IV

OF RECAP APPLICATION

Art. 9º Applies the suspension benefit of the requirement of the Contribution to PIS/PASEP and COFINS, in the form of RECAP, in imports or acquisitions, in the internal market, of machines, appliances, instruments and equipment, new, related to decree, pursuant to the inciso II of § 3rd Art. 13 of Law No 11,196 of November 21, 2005.

§ 1º In the case of acquisition of goods in the domestic market with the benefit of RECAP, the person seller legal shall make it in the tax note for sale the expression "Sale effected with suspension of the requirement of the Contribution to PIS/PASEP and COFINS", with specification of the corresponding legal device, as well as the act number which granted the habilitation to the purchaser

§ 2º The deadline for fruition of the benefit of suspension of the chargeability of contributions in form of the caput extinguish after three years counted from the date of the habilitation to RECAP.

Art. 10. The suspension of the requirement of the contributions in the form of RECAP converts to zero aliquot after:

I-complied with the export commitment that it treats art. 4th, observed the provisions of the inciso I of the art caput. 7o;

II-complied with the export commitment that it treats art. 5th, observed the provisions of the inciso II of the art caput. 7o; and

III-transcorrection within eighteen months, counted from the date of acquisition, in the case of the Brazilian shipyards.

CHAPTER V

DAS GENERAL PROVISIONS

Art. 11. The acquisition of capital goods with the benefit of RECAP does not generate, for the purchaser, the right to the discount on ascertained credits in the form of the art. 3rd of the Law No 10,637 of December 30, 2002 and of art. 3rd of Law No 10,833 of December 29, 2003.

Art. 12. The recipient legal person of RECAP is required to collect interest and fine, from live or on an office, counted from the date of the acquisition of goods with the benefit of RECAP, regarding the unpaid contributions due to the suspension, in the hypotheses of:

I-do not incorporate the well acquired for your immobilized asset ;

II-fail to comply with the export commitment of which they treat the arts. 4th or 5th, observes the provisions of art. 7o;

III-have cancelled your habilitation, in the form of art. 8o; or

IV-resell the well acquired prior to the conversion of the aliquot to zero, in the form of the art. 10.

§ 1º Legal accruals and the penalty that it treats the caput will be required of the person beneficial recipient of RECAP in the condition of:

I-taxpayer, in relation to Contribution to PIS/PASEP-Import and à COFINS-Importation; or

II-of responsible, in relation to the Contribution to PIS/PASEP and COFINS.

§ 2º Interest and fine, from lives or of office, of which this article is required will be required:

I-in-isolation, in the hypothesis of the inciso II of the caput ; or

II-together with the unpaid contributions, in the hypotheses of the incisos I, III and IV of the caput.

§ 3º In the assumption of the inciso II of the caput, the fine, of mora or of office, will be applied on the value of the uncollected contributions, in proportion to the difference between the minimum percentage of exports established and the effectively achieved.

§ 4º The payment of the legal accruals and the penalty that it treats the caput does not generate, to the legal person recipient of RECAP, right to the discount on ascertained credits in the form of the art. 3rd of the Laws at 10,637, from 2002, and at 10,833, from 2003, and art. 15 of Law No 10,865 of April 30, 2004.

Art. 13. The suspension of the requirement of the Contribution to PIS/PASEP and COFINS incidents on the sale of capital goods to legal person enabled in RECAP does not prevent the maintenance and use of claims by the seller legal person, in the case of this being taxed by the non-cumulative incidence regime of these contributions.

CHAPTER VI

DAS FINAL PROVISIONS

Art. 14. The Office of the Federal Revenue Office shall, within the scope of its jurisdiction, apply the provisions of this Decree, including in relation to the procedures for the habilitation.

Art. 15. This Decree shall enter into force on the date of its publication.

Brasilia, December 29, 2005 ; 184th of the Independence and 117th of the Republic.

LUIZ INACIO LULA DA SILVA

Antonio Palocci Filho