The Brazilian Supreme Court (STF) has unanimously ruled that accountants cannot be included in tax enforcement proceedings against their clients. The trial on this issue has been ongoing since the 3rd and has been causing tension in the legal community. A decision to the contrary could pave the way for other professionals to be affected – auditors, economists and lawyers themselves, for example.
The financial impact would be enormous. If the inclusion in the infraction reports were allowed, as a jointly and severally liable party, the professional would be obliged to cover the debt if his client failed to pay what he owed to the tax authorities.
This trial took place in the Court's Virtual Plenary. The ministers analyzed the issue through an action involving the State of Goiás (ADI 6284).
The State Tax Code was changed in 2011 and, since then, it has allowed the accountant to be included in clients' tax reports. The rule applied to cases where there was intent or fraud.
However, in practice, lawyers say, this specificity was not being observed. The inspection automatically included accountants – without investigating or demonstrating that the professional acted with the intention of breaking the law and that he personally benefited from that act.
According to the Regional Accounting Council (CRC) of Goiás, the first years of the law's validity were the most difficult for the category. The cases that arrived at the State Tax Administrative Council and the Judiciary were validated even without the observation in the law that solidarity would only be possible with the demonstration of intent.
According to the entity, a single professional was included in a fine of more than R$100 million. There are also records of accountants who had their vehicles seized and accounts frozen because of client debts.
Starting in 2018, after strong action by the category with the judges, the jurisprudence began to change. Today, practically all cases that come to trial have a decision in favor of accountants.
Now, with the STF's position, the case law is consolidated. The tendency is for judges to consider the law unconstitutional and the cases will not even move forward.
Attorney Eléia Alvim, president of the Tax Law Committee of the Goiás chapter of the Brazilian Bar Association (OAB-GO), points out that these cases will not even be able to be analyzed by the Tax Administrative Council from now on. “It is automatic. It is included in the Taxpayer Defense Code of Goiás,” she states.
The rapporteur of the case, at the STF, is Minister Luís Roberto Barroso. He stated, when casting his vote, that the hypotheses of third-party liability are set out in the National Tax Code (CTN) and that the State could not, through its own legislation, expand this list.
“This rule [from Goiás] advances by providing differently on (1) who can be the tax responsible party and (2) under what circumstances they can be the tax responsible party,” he said.
Barroso's understanding was fully supported by the other ministers of the Court. They established the thesis that “a state law that regulates the liability of third parties for infractions in a manner different from the general rules established in the CTN is unconstitutional”.
The establishment of this thesis, say lawyers, serves as a message to other states that have similar laws. In addition, they say, it should discourage the enactment of new rules along the same lines.
The case involving the State of Goiás reached the Supreme Court through a lawsuit filed by the Progressive Party (PP). The request was for the justices to invalidate the section of the State Tax Code that allows the accountant to be held liable – as was done. This is item XII-A, paragraph 2, of article 45 of Law No. 11,651 of 1991, as amended by Law No. 17,519 of 2011.
The State of Goiás may still file a statement of clarification against the decision. This appeal, however, does not serve to reverse the merits. It is only used to clarify unclear or omitted points in the decision. The State Attorney General's Office was contacted by Valor, but had not responded by the time this edition went to press.