By five votes to three, the 1st Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) understood that, within twenty days after the start of the inspection, the late payment fine of 20% is applied only to taxes already confessed in the Declaration of Federal Tax Debits and Credits (DCTF).
The prevailing understanding was that debts declared in the Integrated Economic-Fiscal Information Declaration (DIPJ) that were not acknowledged in the DCTF do not qualify for the benefit of “spontaneous reporting” as set out in Article 47 of Law No. 9,430/96. This is the first time that the panel has analyzed the matter.
The provision deals with “spontaneous reporting”, which occurs when the taxpayer declares a debt before the tax procedure. According to the law, even after the start of the tax procedure, the taxpayer can collect the debt within twenty days, with the benefit of collecting only the late payment fine of 20%, instead of the ex officio fine of 75%.
During the audit, the taxpayer noticed that there was a balance related to CSLL already declared in the DIPJ, but that it was not included in his DCTF, and paid the amounts with a late payment fine of 20% within twenty days. In view of this, the taxpayer claims that he is within the provisions of Law No. 9,430, and the fine of 75% cannot be applied.
However, the Federal Revenue Service argues that it would only be possible to exclude the fine collected in the case of confession in DCFT, and that the ex officio fine of 75% should be applied in the case of mere information from the taxpayer in a declaration without the attribute of confession of debt, as is the case with DIPJ. The legislation only states that taxes must be “declared”, without specifying what type of declaration is valid.
The rapporteur, counselor Fernando Brasil de Oliveira Pinto, understood that only if the debt was confessed in DCTF would the taxpayer be entitled to the application of article 47 of Law No. 9,430/96, not covering the case of declaration in DIPJ, since this would not be considered an “acknowledgement of debt”. Four other counselors agreed with him.
Counselor Luis Toselli, on the other hand, dissented. For the judge, in art. 47 of law no. 9.430/96 there is no restriction on the type of declaration that must be made by the taxpayer. Counselors Gustavo Guimarães da Fonseca and Guilherme Adolfo dos Santos Mendes agreed with him.