The Federal Revenue Service published last Wednesday (12/21) four consultation solutions and one divergence solution with clarifications on topics such as the deduction of expenses from the IRPJ and CSLL bases in the real profit calculation regime. One of them defines, for example, that the fine for improper use of ICMS credit is not deductible from the calculation basis of these taxes.
In another solution, the IRS explains the percentages that should be applied to the revenues of companies in the construction activity to determine the IRPJ calculation basis. Another doubt resolved by the tax authorities concerns the income paid by Swiss pension entities to Brazilian residents aged 65 or over who are exempt from Income Tax Withheld at Source (IRFF).
Camila Fernandes Lastra, a lawyer specializing in Public Law, Regulatory Law and Strategic Litigation, and a partner at Lavocat Advogados, emphasizes that the solutions should be applied within the scope of the Federal Revenue Service in cases that deal with the same controversies. In the case of the Administrative Council of Tax Appeals (Carf), the consultations should be used in accordance with article 100 of the National Court Code (CTN), which establishes normative acts as complementary norms to laws.
“At Carf, it is possible to use the understanding of the consultations, given the rule of article 100 of the CTN, which establishes that the normative acts issued by the administrative authorities are complementary norms to the laws, under penalty of legal uncertainty and lack of predictability in tax matters. However, it cannot be said with certainty that Carf will treat the cases with the same understanding of these consultations”, says Lastra.