The 3rd Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) decided that the taxpayer, a shopping center, does not need to collect PIS and Cofins on income from parking. The thesis prevailed that the shopping center is a condominium, without legal personality, and cannot be taxed as a company.
The favorable outcome for the taxpayer represents a change in understanding in the 3rd Panel of the Superior Chamber, whose position on the matter was favorable to the tax authorities. At the end of September, there was a decision favorable to the taxpayer in a similar case in the 1st Panel of the 3rd Chamber of the 3rd Section.
The case, which was tried on the 22nd, was brought before the Carf after the inspection agency issued a notice of violation against Shopping Center Recife, demanding the collection of PIS and Cofins taxes for the period from January 2000 to December 2004 on the parking revenue. The DRJ denied the appeal. The lower court, however, granted the taxpayer's appeal, and the National Treasury appealed.
In his oral argument, the taxpayer's lawyer, Ivo Lima, stated that the appellant is not a legal entity. “[The condominium] has no legal personality, no assets or autonomy. It was established as a way to facilitate relations with third parties. The expenses and any revenues earned do not belong to the condominium, but to the condominium owners,” he said.
The rapporteur, however, argued that the discussion should not revolve around the legal personality, but rather the activity performed. “The problem is not the nature of the person, nor the fact that it is a condominium. It is the fact that it provides the service. When a condominium carries out business activities, it has tax capacity regardless of whether it is constituted for that purpose [business activity],” he stated.
Counselor Tatiana Midori Migiyama filed a dissenting opinion citing the Federal Revenue Service’s Cosit 3/2007 Dissenting Decision, which states that “in the event of lease of common areas, the condominium [which contains private and common areas] does not lose its nature; however, since it does not have legal personality, the resulting income will be considered earned by the condominium owners, in proportion to the share attributed to each one.” The counselor also highlighted that the issue has been decided in favor of the taxpayer in the Judiciary.
The trial ended in a tie and was decided in favor of the taxpayer.
The process is number: 19647.009178/2005-61.