Brazil: Full Session Of The Superior Chamber Of Tax Appeals - Approval Of Precedents

(i) All those listed as having tax liability in the assessment are legitimate parties to object to and appeal the requirement of tax credits and the respective binding liability;

(ii) Upon the characterization of the occurrence of willful intent, fraud, or simulation, the initial term for the start of the limitation period will be governed by article 173, item I, of the National Tax Code (CTN);

(iii) Error in filling in the income tax statement adjustments caused by incorrect information provided by the paying source does not authorize the assessment of an ex-officio fine;

(iv) Article 14 of Law no. 11,488, of 2007, is applied retroactively, which repealed the single ex-officio fine due to the failure to add the late payment fine to the late payment of the tax, which was provided for previously by article 44, § 1, II, of Law no. 9,430/96;

(v) The recovery of the tax debtor's voluntary admission due to the tax authorities' inactivity for a period superior to sixty days is applied retroactively, reaching the acts practiced by the tax debtor within such period;

(vi) In the determination of the amounts to be assessed on an ex-officio basis for each tax, after the exclusion of the Simples, any collections of the same nature made under this system are to be deducted, subject to the percentages under the law on the amount paid in a unified form;

(vii) The possibility of an administrative proceeding of the Executive Declaratory Act (ADE) excluding the Simples does not prevent the exofficio assessment of the tax credits due on account of the exclusion.

(i) The setting of the initial term for the start of the limitation period, in the event of an assessment on profits made available abroad, must take into consideration the date on which this availability is so considered, and not the date the profits are earned by the company based abroad;

(ii) As of the effectiveness of Law no. 9,249, of 1995, the deductions of leasing payments requires the proof of the need to use the leased assets for the production or trade of goods and services;

(iii) In the ascertainment of the IRPJ, the legal entity may deduct the amount of the withheld income tax from the due tax, provided there is confirmation of the withholding and the computation of the corresponding revenues in the tax basis;

(iv) The retroactive application of the law that accepts an activity previously preventing the admission into the Simples system is forbidden;

(v) After the end of the calendar year, ex-officio assessments of the IRPJ or CSLL to demand uncollected estimates are not allowed;

(vi) The positive result obtained by cooperatives in transactions performed with its cooperative members does not integrate the tax basis of the Social Contribution on the Net Income – CSLL, even before the effectiveness of article 39 of Law no. 10,865, of 2004;

(vii) Undue payment or overpayment on the basis of estimate characterizes payment made in error on the date of its collection, and may be refunded or offset;

(viii) At the resale of used vehicles, dealt with in article 5 of Law no. 9,716, of Nov. 26, 1998, a 32% (thirty-two percent) coefficient to determine presumptive profit is applied on the gross revenue, corresponding to the difference between the acquisition value and that of resale of these vehicles.

(i) The rectification of the Annual Adjustment of the Income Tax Statement of Individuals whose object is the change in the form of taxation of earnings after its filing term is forbidden;

(ii) The income tax is not levied on sums earned regularly by congress members on the basis of cabinet support and accommodation, except when the inspection finds that the funds are used for their own benefit and are not connected to legislative activities;

(iii) The "List of Co-Responsible Parties - CORESP", the "Report of Legal Representatives– RepLeg" and the "List of Connections – CONNECTIONS", attached to the social security assessment issued solely against the legal entity, do not ascribe tax liability to the persons stated therein, nor can they be discussed in federal tax administrative courts, its purpose being for information only; and (iv) The social security contribution is not charged on amounts paid as transportation vouchers, even if made in cash.

(i) The possession and circulation of tobacco, cigars, cigarillos, and cigarettes of foreign origin lacking substantiating documentation of their regular import characterize a violation of tax control actions, the ownership of the goods being irrelevant to classify the violation.

(i) Assessment due to non-performance of accessory bookkeeping requirements is subject to the limitation period provided for in article 173, item I, of the CTN;

(ii) Irregularity in the issue or extension of the Writ of Tax Procedure does not lead to the cancellation of the assessment;

(i) The figures informed to the State Tax Authorities in an amount superior to those informed to the Federal Tax Authorities characterize omission of revenues if the tax debtor does not justify the ascertained differences;

(ii) Until January 21, 2007, the fine provided for in article 44, item I, of Law no. 9,430/96, is not to be jointly applied on the IRPJ or CSLL due at the annual adjustment and on the corresponding uncollected estimates, ascertained on the same tax basis verified in a tax proceeding; and

(iii) Taxes and contributions whose enforceability is suspended, pursuant to article 151 of CTN, are not deductible in the determination of the IRPJ and CSLL bases.

(iv) Until January 21, 2007, the assessment of a single fine due to the failure to collect the income tax due in the carnê-leão (monthly income tax collection of individuals) applied together with an ex-officio fine provided for in article 44, item I, of Law no. 9,430/96, does not apply.