Taxpayers who request the withdrawal of cases from the list of judgments by the Administrative Council of Federal Appeals (Carf) will have their demands met automatically, according to an ordinance signed by the Minister of Finance, Fernando Haddad.
The rule will be valid during the term of Provisional Measure (MP) 1,160, of January 12 of this year, which brought back the tie-breaking vote in Carf by a representative of the Treasury.
According to the ordinance, the requests will be automatically granted by the president of the judgment class and will not be included in the agenda while the MP is in effect.
The MP needs to be voted on by Congress by the beginning of June, when it expires. Congress should set up joint committees in the coming weeks to analyze four provisional measures. Among them, the one that changes the rules of Carf.
According to the specialist in Tax Law at TozziniFreire Advogados, Renata Emery, the Ordinance is an acknowledgment by the Ministry of Finance itself that we are in a moment of legal uncertainty, since the tiebreaker criterion is given by a measure that is provisional and which does not have its approval guaranteed by the Legislature.
On the other hand, a situation of lack of isonomy was created in relation to taxpayers who asked for their cases to be removed from the agenda in recent months, but were not answered. The tendency is for companies affected to ask the Judiciary to paralyze the process of collecting these debts while this uncertainty persists.
“This ordinance gives us an important argument to question the judgments that took place before its edition”, says Emery. “There are legal arguments for this taxpayer to ask the Judiciary not to collect this debt until the fate of this MP is defined.”
Faced with the risk of defeat in Parliament, the government put together a new text in agreement with the Brazilian Bar Association (OAB), but the matter is not considered closed by deputies, and the Ministry of Finance itself has doubts regarding the approval of the measured in the negotiated manner.
According to a study by Insper’s Taxation Research Center, 138 amendments (suggestions for amendment) to the MP were presented in Congress. Some provide for the revocation and reinstatement of the casting vote. Others deal with new tie-breaking systems in the organ’s judgments.
Some maintain the casting vote, but attribute new effects to the return of this model for resolving judgments, such as the exclusion or reduction of fines, interest and charges, as well as the waiver of guarantees and the removal of joint and several liability. These changes are in line with the agreement drawn up with the OAB.
Carf
The Carf is a body of the Ministry of Finance, formed half and half by representatives of the Union and taxpayers, which judges in the second administrative instance disputes in tax and customs matters.
Changes to the council’s rules are part of the fiscal package announced by Minister Fernando Haddad in early January to increase revenue.
The attempt to avoid billionaire losses for the Union in tax discussions ended up generating a trillionaire stock of actions awaiting judgment at CARF.
The value of the causes under discussion in the council grew by more than 60% in the last three years and surpassed the mark of R$ 1 trillion, although the number of accumulated processes has fallen by around 20%.
Source: Folha de São Paulo