On a monthly basis, our firm follows up on the trials held at the Superior Chamber of Tax Appeals of the Administrative Council of Tax Appeals of the Treasury Ministry (CARF), the last administrative court for the judgment of the validity/legality of the required federal taxes (Income Tax, CSLL, PIS, COFINS, IPI, among others).
As a result, we have verified that the following matters of great relevance for the taxation of legal entities will be heard by the 1st Panel of CARF's Superior Chamber, in the session to be held on February 19 and 21:
- Proceeding: 16327.000572/2005-69
Matter: disposal of ownership interest in a company controlled abroad by the parent company in Brazil. It will be discussed whether the mentioned disposal and the use of this amount in favor of the parent company constitute profit for the purpose of the Corporate Income Tax (IRPJ) charge;
- Proceeding: 13839.001516/2006-64
Matter: whether the subscription of shares carried out by a partner to increase capital can generate the premium amortization benefits provided for in articles 385 and 386 of the Income Tax Regulation/99, since there is no effective acquisition of ownership by a third party;
- Proceeding: 10768.010249/2002-85
Matter: artificiality in sales transactions with future repurchase of loaned shares, which, in the tax authorities' view, was carried out for the generation of losses and future deductibility (in Stock Exchange trades);
- Proceeding: 10580.009602/2006-04
Matter: the Superior Chamber will analyze whether the limit of the so-called "30% lock" applies to the offsetting of tax losses for IRPJ and CSLL purposes in the event of dissolution of a company (in this case, there was the take-over of companies); and
- Proceeding: 16327.000181/98-63
Matter: a taxpayer was awarded a final and unappealable decision, which authorized him to not collect the CSLL, taking into account the unconstitutionality of Law no. 7,689/88 (which created the charge). What is discussed are the res judicata (claim preclusion) limits in cases of continued tax relation, as in the case of the CSLL, which is ascertained periodically, considering that the tax authorities regarded that future legislation changes would render the decision useless.
We will be following up on the decisions at the court, taking into account the relevance of such matters, in order to instruct any future audits and for the tax planning of companies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.