On September 3, 2019, the Board of Tax Appeals – CARF approved 33 new jurisprudential precedents, the largest approval of precedents in the history of CARF, of which 21 were favorable to taxpayers and 12 favorable to tax authorities.

Among the approved precedents are those dealing with the drawback regime, the non-taxation of IRPJ and CSLL arising from foreign exchange variation, the non-inclusion of equity interest result in the IRPJ or CSLL calculation basis in the presumed profit system, among other matters. See the full list below:

Precedent No. 129

If an irregularity in the procedural representation is found, the taxable person must be summoned to remedy the defect before the decision of the administrative appeal.

Precedent No. 130

The attribution of responsibility to third parties based on art. 135, item III, of CTN does not exclude the legal entity from the taxpayer pole of the tax obligation.

Precedent No. 131

There is no legal prohibition on the application of a voluntary fine in the constitution of a tax credit against an entity subject to the extrajudicial liquidation regime.

Precedent No. 132

In the case of the voluntary assessment on debt subject to a court deposit in partial amount, the charge of a fine and default interest only amounts to the amount of debt not covered by the deposit.

Precedent No. 133

Failure to comply with the subpoena to provide clarification does not justify, per se, the aggravation of the voluntary fine, when this conduct led to presumption of failure to report income or revenues.

Precedent No. 134.

The mere existence, in the articles of association, of an activity prohibited to “Simples Federal” does not result in the exclusion of the taxpayer, being mandatory the inspection to prove the effective execution of such activity.

Precedent No. 135

The anticipation of payment of IRPJ and CSLL, through monthly estimates, characterizes payment capable of attracting the application of the statute of limitation rule provided for in art. 150, Paragraph 4 of the CTN.

Precedent No. 136

The adjustments arising from depreciation insufficiency or abundance, accounted for by the leasing institutions in accordance with Central Bank of Brazil rules, do not cause tax effects to the CSLL, and must be neutralized without accounting by means of exclusion of revenues or addition of expenses in the calculation of the tax assessable basis of the contribution.

Precedent No. 137

Positive results arising from the valuation of investments by the equity method do not include the IRPJ or CSLL calculation basis in the presumed profit system.

Precedent No. 138

Withholding income tax on corporate income, subject to quarterly or annual calculation, characterizes payment capable of attracting the application of the statute of limitation rule provided for in art. 150, Paragraph 4 of the CTN.

Precedent No. 139

The discounts and rebates granted by a financial institution in the renegotiation of credits with its customers constitute operating expenses deductible from the actual profit and the CSLL calculation basis, and the provisions of Articles 9 to 12 of Law No. 9,430 / 1996

Precedent No. 140

The provisions of art. 11 of Law No. 13,202 of 2015, in the sense that international agreements and conventions entered by the Government of the Federative Republic of Brazil to prevent double taxation of income include CSLL

Precedent No. 141

Financial investments made by credit unions are cooperative acts, which excludes the incidence of IRPJ and CSLL on their respective results.

Precedent No. 142

Until December 31, 2008, the scope of hospital services includes all activities typically promoted in hospitals, aimed directly at health promotion, even if occasionally provided by other legal entities, excluding simple medical consultations.

Precedent No. 143

Proof of withholding income tax deducted by the beneficiary in the determination of income tax due is not made exclusively by means of withholding proof issued on its behalf by the source paying the income.

Precedent No. 144

The legal presumption of omission of revenues based on the maintenance, in liabilities, of obligations that are not proven to be enforceable (“unproven liabilities”), is characterized at the time of the accounting record of the liability, being taxed the irregularity in the calculation period. corresponding

Precedent No. 145

From 01/10/2002, the offsetting of negative balance credit of IRPJ or CSLL, even with tax of the same kind, should be promoted by presenting a Compensation Statement – DCOMP.

Precedent No. 146

The foreign exchange variation resulting from investment abroad valued by the equity method is not taxable by IRPJ and CSLL.

Precedent 147

Only with the edition of Provisional Measure No. 351/2007, converted into Law No. 11,488 / 2007, which changed the wording of art. 44 of Law No. 9,430 / 1996, there is now a specific prediction of the incidence of the isolated fine in the event of non-payment of the “carnê-leão” (50%), without prejudice to the simultaneous penalty for the voluntary release of the respective income in the annual adjustment ( 75%).

Precedent No. 148

In case of a fine for noncompliance with social security ancillary obligation, the assessment of the statute of limitation is always based on art. 173, I, of CTN, even if there is advance payment of the principal obligation or it has been fulminated by the statute of limitation based on art. 150, § 4, of the CTN.

Precedent No. 149

The contribution salary is not part of the undergraduate or postgraduate scholarship granted to employees in the period prior to the effectiveness of Law No. 12,513 of 2011, in cases where the entry points as the sole reason for requiring social security contribution the fact of such aid refers to higher education.

Precedent No. 150

The unconstitutionality declared by means of RE 363.852/MG does not cover the entries of subrogation of the legal entity in the obligations of the individual rural producer based on Law No. 10,256 of 2001.

Precedent No. 151

Item II of paragraph 4 of art. 1 of Law 11.945 / 2009, referring to a fine for the lack or delay in the presentation of the “DIF Papel Imune”, which must be combined in a single amount by a statement not presented within the quarterly period, and no longer per calendar month, as previously established in art. 57 of MP No. 2.158-35 / 2001, establishing the beneficial retroactivity under art. 106 of the National Tax Code.

Precedent No. 152

Credits related to taxes administered by the Brazilian Federal Revenue (RFB), recognized by a final court decision that only allowed offsetting with tax debts of the same type, may be offset against their own debts related to any taxes administered by the IRS. Brazil, in compliance with the legislation in force at the time of its realization.

Precedent No. 153

Revenues from sales of products to establishments located in the Manaus Free Trade Zone are equivalent to export revenues and are therefore not subject to contributions to PIS/Pasep and COFINS.

Precedent No. 154

Once the illegitimate opposition to the IPI presumed credit compensation is found, the monetary correction by the Selic rate must be counted from the end of the 360-day period for the analysis of the taxpayer’s request, pursuant to art. 24 of Law No. 11,457 / 07.

Precedent No. 155

The fine provided for in art. 33 of Law No. 11.488 / 07 is not understood as the same penalty for losses provided for in art. 23, item V, of Decree Law no. 1,455 / 76, which precludes the application of benign retroactivity defined in art. 106, II, “c”, of the National Tax Code.

Precedent No. 156

On the drawback, suspension modality, the initial term for counting the five-year period statute of limitation for the right to post suspended taxes is the first day of the year following the end of the thirty-day period following the deadline for the realization of the committed exports, pursuant to art. 173, I, of CTN.

Precedent No. 157

The percentage of the presumed credit rate of agribusinesses of animal or vegetable products, provided for in art. 8 of Law No. 10,925 / 2004, will be determined based on the nature of the commodity produced or marketed by the referred agribusiness, and not based on the origin of the input that it applied to obtain it.

Precedent No. 158

Withholding Income Tax (IRRF) on amounts paid, credited, delivered, employed or remitted, each month, to residents or domiciled abroad, as compensation for the obligations contracted, forms the basis for calculating the Intervention Contribution. in the Economic Domain – CIDE referred to in Law No. 10.168 / 2000, even if the paying source bears the financial burden of the withholding tax.

Precedent No. 159

It is not required the accounting entry for the disallowance of compensation of non-cumulative PIS/Pasep and Cofins, even if adjustments are made to the calculation basis of the contributions.

Precedent No. 160

The application of the substitutive fine for loss referred to in § 3 of art. 23 of Decree-Law no. 1,455, of 1976, does not depend on the evidence of prejudice to the payment of taxes or contributions.

Precedent No. 161

The error on the indication, in the Import Declaration, of the classification of the goods in the Mercosur Common Nomenclature, in itself, leads to the application of a fine of 1%, provided for in art. 84, I of MP No. 2,158-35, 2001, even if the judging body concludes that the classification indicated in the official letter would be equally incorrect.

We stress that the National Treasury Attorney’s Office – PGFN has adopted a position of not challenging a decision based on a precedent approved by CARF, and such precedents may have their effectiveness extended to the Federal Revenue if the Minister of Economy attributes binding effect to a specific precedent.

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