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

On Monday, Dec. 10, 2012, a special Full Session of the Superior Chamber of Tax Appeals (CSRF) was held exclusively for the analysis of proposals of precedents for the consolidation of its case laws.

The Chamber heard proposals limited to the jurisdiction of each panel of the Superior Chamber1, as well as general precedents, extending to all bodies of the Administrative Council of Tax Appeals.

The approval of a precedent requires the approval of its summary by at least 2/3 of the members of the respective full board.

This is the full version of the summaries, approved yesterday by each full board:

I – NEW PRECEDENTS APPROVED BY THE FULL SESSION OF THE CSRF:

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(iv) Article 14 of Law no. 11,488, of 2007, is applied retroactively, which repealed the single ex-officio fine due to the failure to add the late payment fine to the late payment of the tax, which was provided for previously by article 44, §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

II – NEW PRECEDENTS APPROVED BY THE 1st PANEL OF THE CSRF - PROPOSALS OF NEW PRECEDENTS SUBMITTED TO THE 1st PANEL OF THE CSRF:

(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.

III - NEW PRECEDENTS APPROVED BY THE 2nd PANEL OF THE CSRF:

(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.

IV - NEW PRECEDENTS APPROVED BY THE 3rd PANEL OF THE CSRF

(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.

Of the 26 proposals heard, six were rejected, two from the CSRF, three from the 1st Panel and one from the 2nd Panel:

I – PROPOSALS REJECTED BY CSRF'S FULL SESSION:

(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;

II – PROPOSALS REJECTED BY CSRF'S 1st PANEL:

(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.

II – PROPOSALS REJECTED BY CSRF 2nd PANEL:

(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.

CARF's new precedents will come into force as of their publication in the official gazette, at which time they will receive a specific number and will be required to be followed by all the councilors.

The approval of these new precedents, consolidating the case laws of the Administrative Council of Tax Appeals, is an important instrument to increase the speed and stability of the relations between the Tax Authorities and Taxpayers. With the implementation of the electronic process, the identification of appeal matters, and the publication of the new precedents, administrative trials tend to become faster.

Footnotes

1 The CSRF panels have the same jurisdiction of the respective CARF Session. The 1st Panel hears proceedings related to IRPJ, CSLL and SIMPLES, having residual jurisdiction as to other tax matters; the 2nd Panel hears proceedings involving IRPF, ITR and Social Security Contributions, while the 3rd Panel hears cases dealing with the charge of IPI, PIS/COFINS, IOF, CIDE, customs matters, and taxes on international trade. The Full Session, which combines members of the three panels, is responsible for standardizing dissenting opinions involving more than one of the CSRF panels.

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.

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