Split payment in the tax reform and the (un)necessity of the tax precautionary measure as a guarantee of tax credit

Abstract

The Constitutional Amendment Number 132/2023 introduced a new dual tax model in Brazil, based on the Tax on Goods and Services (IBS) and the contribution on goods and services (CBS), highlighting the implementation of the split payment mechanism, which provides automatic withholding of tax at the time of financial settlement. This new system shifts the responsibility for tax collection to payment system operators, aiming to reduce tax evasion, as well as enhance predictability in revenue collection. In this context, the present article aims to analyze the (un)necessity of the fiscal precautionary measure, as provided by Law No. 8,397/1992, due to the implementation of split payment. The hypothesis is that the automation of collection renders the use of the precautionary measure obsolete in standard operations, although it may still be relevant in specific scenarios, such as the ones connected to fraud. The methodology adopted is qualitative, based on literature review and normative analysis. The study seeks to assess the compatibility of the fiscal precautionary measure with the principles introduced by the tax reform, especially the principle of cooperation between tax authorities and taxpayers. It is concluded that, although challenged by the new normative framework, the fiscal precautionary measure may be reconfigured as a subsidiary instrument, preserving its effectiveness in sectors not yet fully integrated into the automated tax collection system.