The Legislative Assembly of the State of Rio de Janeiro has recently approved a legislative bill 2768/2009 that authorizes offsetting of credits registered as overdue federal debts with “precatórios” (accumulated judicial debts). The text was proposed by the government of the state of Rio de Janeiro at the end of last year which has undergone several changes and was subsequently forwarded for the governor´ s sanction.
The companies of the State of Rio de Janeiro, with the sanction of this law, will no longer have to resort to the Judiciary in order to offset taxes with “precatórios”, which are usually acquired on the market with significant discounts. The compensation of taxes with non priority “precatórios” has already been considered constitutional by the Supreme Court ´s plenary after analyzing the direct action on unconstitutionality (Adin) no. 2.851, on December, 2004, on the law of the State of Rondônia.
The approved text stipulates that in order to use such an offset several conditions must be met, namely:
a - the “precatório” must originate from a court decision rendered by the Court of Appeals of this particular State;
b - the payment in installments or partial payment of “precatórios” shall not have occurred;
c - the taxpayer responsible for the credit registered as overdue federal debts shall appear in the “precatório” ´s case records, as the beneficiary of the order on the date of the offsetting request, even if by credit assignment;
d – the tax credit to be offset must have been registered as overdue federal debts before January 1st, 2007;
d – Part of the credit registered as overdue federal debts, object of the offset, shall be paid for in cash in accordance with a table provided for in the law. The credits registered as overdue federal debts prior to or in 2003 have such a portion set at 13%, whereas the portion for credits registered in 2006 is of 55%; the “precatórios” to be used in the offset may have a value superior to the credit registered as overdue federal debts, the hypothesis in which the simple offer of the “precatório” implies in the waiver to the exceeding value on the part of its holder.
The state of Rio de Janeiro currently owes approximately R$2.5 billion in “precatórios”. And the outstanding tax debts thereof is approximately R$28 billion, according to the National Treasury Office.
The law is an important alternative in favor of the taxpayer, bearing in mind the rules for the payment of such securities, altered by Constitutional Amendment no. 62, of December, 2009, which favors the States and Municipalities in debt.
The referenced amendment made the payment of “precatórios” even more difficult after establishing a minimum percentage of the budgets so that the States and Municipalities settle their debts – which is not always sufficient to account for the existing long queues to receive the credits. It is worth reminding that the amendment also brings the possibility of adopting a maximum period of 15 years to pay such securities. For all such aspects such a provision is a clear mechanism that favors the States and municipalities in debt.
Some laws allowing such an offset have already been adopted in other States such as in the Federal District with Law no. 29.666 of October 2008 and in Paraná with Law no. 14.606 of 2005, which allows the companies to pay foment agencies with “precatórios”. São Paulo and Rondônia have also enacted similar laws, which were in force for a determined period of time. | 
