Brazil: Tax Thesis – Possibility Of Judicial Discussion - Fine Of 50% Of The Credit - Non-Ratified Offsetting And Undue Or Non-Granted Refund Requests

As known, Law no. 12,249/2010 created the fines that correspond to 50% of the value of credits subject of non-ratified Offsetting Statements or undue or non-granted Refund Requests:

What happens is that, in our opinion, such penalties are unconstitutional and illegal, mainly because, as widely known, the application of penalties is only possible in case an obligation imposed by law is not met, that is, if there is necessarily the practice of an unlawful conduct.

Along these lines, except for events of proven fraud, malice, simulation or of unstated offsetting, which are expressly prohibited by law, the mere fact of a Refund Request being dismissed or deemed undue or even an Offsetting Statement being deemed as non-ratified do not denote the practice of any unlawful conduct by taxpayers.

In fact, it can be noted that, on the one hand, the regular filing of claims of those types correspond to the exercise of the right to claim, ensured by the Constitution, on the other hand, the hearing of such claims does not characterize any violation that can be attributed to taxpayers. This analysis could, at most and in thesis, lead to the duty to pay a fee or public price, but never the application of penalties to taxpayers.

Therefore, it is clear that these fines are nothing but an unconstitutional political penalty, an indirect enforcement means in order to collect taxes, which has been rejected by the Judiciary for a long time. Furthermore, the fines have a clear confiscation nature and are disproportional and unreasonable, since they imply the increase of up to 50% of the taxpayer's tax liabilities, generating significant and detrimental impacts on their financial statements.

Within this context, there is a decision from the Federal Court of São Paulo ruling out the application of these fines in cases in which the Tax Authorities have failed to prove taxpayers have acted in bad faith. This means we view it is possible to file preventive legal measures, together with a request of unconstitutionality, in order to rule out the application of these penalties in requests for refund and offsetting pending examination, as well as future requests.

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