The re-establishment of the casting vote in the Administrative Council for Tax Appeals (Carf) - promoted by Law 14.689/2023, published on Thursday (21/9) - brought as a "gift" a series of compensations that may benefit taxpayers defeated in their claims before the body. However, according to tax experts interviewed by the electronic magazine Consultor Jurídico on the subject, these compensations are not enough to remove the unequal nature of the tie-breaking vote in favor of the government in Carf judgments.
Among the quid pro quos listed for cases in which the taxpayer is defeated by the casting vote are the following: exclusion of fines and cancellation of tax representation for criminal purposes; payment of the debt without interest and in 12 installments (with the taxpayer having to demonstrate within 90 days); possibility of using credits from tax losses and negative calculation bases of the Social Contribution on Net Profits (CSLL); non-incidence of the legal charge in the event of registration as an active debt of the Union; and issuance of a tax clearance certificate during the 90-day period for the taxpayer to demonstrate payment of the tax due.
In addition, it will be possible to use writs of payment to amortize or settle the debt; to expand the National Treasury's negotiating capacity within the scope of tax settlement agreements, with the possibility of offering more advantageous proposals for taxpayers; and to dispense with the debtor offering a guarantee for judicial discussion of the credits covered by the decision, as long as he has the capacity to pay.
However, according to Daniel Moreti, a partner at the law firm Fonseca Moreti Ito Stefano Advogados and a judge at the Tax Court of the State of São Paulo, all these measures will not prevent the taxpayer from suffering losses as a result of the casting vote, since it is in the tax administrative process that specific issues are discussed with greater specialization and richness of detail.
"The taxpayer will be at a disadvantage. Paying in 12 interest-free installments or taking the debt to court, without the need for a prior guarantee, may be forms of relief, but they do not solve the loss suffered by taxpayers. It is worth noting that several other provisions were vetoed that would have resized tax fines and brought important guidelines for tax compliance, in order to reduce litigation in the relationship between the tax authorities and taxpayers."
Katia Gutierres, a partner at Barcellos Tucunduva Advogados, believes that the quid pro quo alleviates the situation, but does not fully compensate for the inequality inherent in the casting vote.
"For example, the issue of the cumulation of an isolated fine with an ex-officio fine has been unfavorable to taxpayers within Carf, precisely because of a casting vote in favor of the tax authorities," she recalled. "It so happens that this matter is being judged in favor of taxpayers in the Judiciary. In this scenario, the taxpayer will have an interest in overturning the tax authorities' decision in the courts and, despite not being subject to the guarantee requirement, will incur costs in bringing the matter to court. And if, in the end, the taxpayer succeeds in court, the Attorney General's Office will have to pay the attorney's fees. The decision by a casting vote in this case will prove inefficient for both the tax authorities and the taxpayer."
For Simone Bento, a lawyer at Rolim Goulart Cardoso Advogados, the benefits do not fully compensate for the inequality resulting from the resumption of the casting vote.
"If it were pro-taxpayer, obviously the tax credit would already be terminated administratively. And no benefit related to ease of payment, reduction of fines and the need for discussion in the courts (even without a guarantee) can mitigate the effects of maintaining collections by a casting vote of the tax authorities themselves."
Substantial compensation
Fernanda Lains, a partner at Bueno Tax Lawyer, says that the benefits will never put an end to the inequality caused by the casting vote, but even so, it is not possible to ignore the fact that the compensations are substantial.
"It's as if there were a deferral of the tax over time, which is quite broad. Not only that, but the taxpayer will be able to use tax losses and negative CSLL bases to offset the tax owed, as well as being able to use precatory payments. Depending on the analysis of case law on the subject in the Judiciary, the taxpayer will have good financial reasons to pay the tax deemed due."
For his part, Mauricio Terciotti, a partner at TAGD Advogados, considers that Carf's objective should not be to collect tax, but to deliver fair judgments based on the principles that guide tax discussions and the administrative process.
"I understand that there is no financial benefit that compensates for an unfair, unequal judgment. Regardless of this issue, this benefit of being able to pay the debt without fines and interest is very interesting for the taxpayer from a financial point of view, especially since administrative discussions take several years to be finalized."
For Leonardo Gallotti Olinto, a partner at Daudt, Castro e Gallotti Olinto Advogados, the quid pro quo does not compensate for the losses, but it is a valid and commendable development. The big problem, according to him, is the "back and forth" of the casting vote. "Look how many times this issue has changed. This means that the court's understanding, which should be strictly technical, ends up being casuistic. If two identical cases have been judged at different times, one with the casting vote here, the other there, the results will be different, which is neither logically healthy nor desirable."
Eduardo Bonates, a partner at Almeida, Barretto e Bonates Advogados, says that the attempts to mitigate the taxpayer's losses are nothing more than a maneuver. "It seems unbelievable and surreal. And that's exactly what it is. In practice, the new law has caused the Federal Government to switch sides and, instead of being defeated in tax disputes within the Internal Revenue Service, it has now become the winner. Overnight. It's like changing the score of a game after the match is over. And then, after committing such an absurdity, changing an administrative defeat into a billion-dollar victory, they tell the businessman that he can be carefree, that he can pay in installments and withdraw interest from a debt that wasn't even supposed to exist. We're talking about more than R$50 billion in 2023 alone."
Finally, Diego Miguita, a partner at VBSO Advogados, believes that the new law is reasonable. "No provision in Law 14.689/2023 can be considered an incentive not to pay, especially since statistics show that the casting vote resolves the minority of cases, and that, in general, these are exactly those in which there are legitimate doubts about the interpretation of the applicable legislation. Certainly, cases contaminated by fraud or simulation, for example, will continue to be decided in the same way as before, that is, without the casting vote being decisive."
Source: Conjur