The administrative request for tax compensation, even if not approved, represents a legitimate exercise of the taxpayer's right to petition. Therefore, there is no correlation between such request and the tax fine provided for by law.
With this understanding, the Plenary of the Supreme Federal Court formed a majority, this Thursday (16/3), to decide that the fine of 50% for the refusal to approve tax compensation is unconstitutional. The virtual trial, which has general repercussions, will last until 11:59 pm this Friday (17/3).
Context
According to Law 9,430/1996, the taxpayer can use credits or receive them in cash from the Tax Authorities. However, if the request for reimbursement or approval of tax compensation is administratively denied, a fine of 50% is applied to the amount in question. In other words, the taxpayer is punished if he erroneously indicates a credit in his favor.
The specific case discussed a ruling by the Regional Federal Court of the 4th Region that invalidated the fine. For the judges, the penalty conflicts with the Constitution when there is no bad faith on the part of the taxpayer. The Union contested the court's decision and claimed that the purpose of the fine was to prevent abusive behavior.
In a subsidiary manner, the National Treasury requested the application of fines in cases where abuse of rights by the taxpayer is proven — that is, requests for amounts previously rejected.
Winning understanding
The vote of the rapporteur, Minister Edson Fachin, prevailed, upholding the decision of the TRF-4. For him, “the mere non-approval of tax compensation does not constitute an unlawful act capable of giving rise to a sanction”.
In the judge's view, the request for tax compensation is not compatible with the repressive function of fines. The automatic sanction, without considering the nature of the person making the request, violates the right to petition.
Fachin also considered that the Union's subsidiary request would violate good faith and fiscal citizenship. To date, he has been supported by ministers Gilmar Mendes, Cármen Lúcia, André Mendonça and Celso de Mello. The latter cast his vote before his retirement, which occurred in 2020.
dissenting vote
Justice Alexandre de Moraes agreed with the rapporteur's arguments and disagreed only with regard to the Union's subsidiary request. He explained that, by law, taxpayers who submit requests in good faith are punished in the same way as those who indicate the credit even though they know it does not exist.
Thus, for the judge, it is necessary to validate the fine when the taxpayer's bad faith is proven. However, the mere reiteration of requests for amounts previously rejected does not constitute bad faith. It only occurs when the conduct “exceeds the limits of the legitimate exercise of the right to petition to the point of constituting an abuse of that same right”.
According to Renato Silveira, partner in the areas of tax litigation and social security taxation at Machado Associados, “the STF correctly recognized that the mere failure to approve tax compensation does not constitute an unlawful act subject to sanction, thus upholding the taxpayer's constitutional right to petition”.
For Bruno Teixeira Rodrigues, tax lawyer and partner at TozziniFreire Advogados, “this is undoubtedly a correct judgment and it was expected that the STF would take this stance because with each request for a declaration, each request for tax refund, for credit reimbursement, the request is fortunate enough to be accepted by the Federal Revenue Service and this is discussed in the administrative process itself. This creates great legal uncertainty because the taxpayers who request it are people acting in good faith and with whom the Revenue Service may eventually disagree.”
Click here to read Fachin's vote
Click here to read Gilmar's vote
Click here to read Alexandre's vote
RE 796.939
Source: https://www.conjur.com.br/2023-mar-16/stf-maioria-multa-negativa-compensacao-tributaria