Ibama changes the calculation guidelines for TCFA
On December 22, 2023, the Federal Environmental Agency in Brazil (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis or “IBAMA”) enacted the Ordinance No. 260/2023, which change the calculation guidelines for the Environmental Control and Inspection Fee (Taxa de Controle e Fiscalização Ambiental or “TCFA”). Said alteration has the potential to significantly increase the amount of TCFA usually paid by certain companies.
The TCFA was established by Federal Law No. 10.765/2000, which altered Federal Law No. 6.938/1981. It consists in a fee (species of the genus tax) levied for the regular exercise of the police power of environmental authorities for the control and inspection of potentially polluting activities and activities that use natural resources.
The TCFA is defined by the degree of pollution potential and the economic size of the enterprise. These informations are provided by the taxpayer upon the registration in the Federal Technical Registry of Potentially Polluting and Resource-Using Activities (Cadastro Técnico Federal de Atividades Potencialmente Poluidoras e Utilizadoras de Recursos Ambientais or “CTF/APP”).
Previously to the validity of the Ordinance, for companies with headquarters and branches, the size was set forth based on the gross annual income of each individual establishment. Therefore, it was possible for a branch with minimal revenue to pay the minimum amount of TCFA, while the branch with maximum revenue would pay the maximum amount.
Starting from the tax year 2024, this classification of the size of each establishment will be done in a different manner. For companies with headquarters and branches, the gross annual income of the legal entity as a whole will be considered.
This change, in practice, brings a significant financial impact for the companies. For example, branches that were classified as “small-sized” may be considered as “large-sized” due to the sum of their revenue with the revenue of the headquarter and other branches. The due amounts, in this case, could be multiplied by up to 10 times (increasing from around BRL 580.00 to approximately BRL 5,800.00 per quarter) for each enterprise.
The payment of the TCFA is due on the last business day of each quarter and the companies must pay the respective revenue collection document up to the fifth business day of the subsequent month. Thus, for the first quarter of 2024, the collection must be made up to April 5th.
It is worth highlighting that it consists in a change of understanding by IBAMA regarding the calculation guidelines for the TCFA, irrespective of any alteration in the Law that has set forth the said fee, which is already been judicially questioned by some companies.
Our Environmental and Tax teams are available for further clarification on the matter, including in relation to applicable legal measures.