In the recent judgment of Extraordinary Appeal 796.939 and Direct Action for Unconstitutionality 4.905, the Full Bench of the STF recognized the unconstitutionality of the application of an isolated fine for an offset not approved by the Federal Revenue Service, whose general repercussion thesis was as follows: “The isolated fine provided for by law to be levied in the event of a mere refusal to approve a tax offset is unconstitutional because it does not consist of an unlawful act capable of giving rise to an automatic pecuniary penalty”.
The incidence of the fine is provided for in article 74, paragraph 17, of law 9.430/96, which stipulates that the taxpayer is subject to a fine of 50% of the amount of the debt whose offset is not approved by the Federal Revenue Service, contrary to various guarantees provided for in our constitutional text.
In his opinion, the Rapporteur of the Adin, Justice Gilmar Mendes, emphasized that the application of the penalty for the mere lack of approval of the offsetting declaration, provided that bad faith, falsehood, deceit or fraud are not verified, violates the fundamental right to petition.
In the same vein, the rapporteur of the RE, Justice Edson Fachin, emphasized that the mere refusal of the request for approval of the declaration does not constitute an unlawful act capable of giving rise to a tax penalty, since the automatic application of the penalty, without considering the taxpayer’s intention, leads one to believe that the request itself represents an unlawful act, contrary to the constitutionally guaranteed right to petition. According to the rapporteur, the automatic imposition of the fine also represents a clear affront to the principle of due process of law and good faith.
In view of this milestone, taxpayers will be able to request the offsetting of tax debts/credits with greater legal certainty, since there will no longer be a penalty if a credit is erroneously indicated in their favor.
The Supreme Court’s new ruling will have a major impact on the Federal Government’s revenue, which, based on the Budget Guidelines Law, has already estimated a loss of approximately R$3.7 billion over the next few years. However, there is no doubt that the very right thesis means a great victory for taxpayers, who have been working for years to have the unconstitutionality of this fine declared.
Finally, it should be noted that the judgment did not deal with the modulation of its effects and that the matter may be raised by the Federal Government in order to limit them. If the ruling is favorable to the interests of the taxpayer, it will be possible to recover the amounts paid in respect of these fines, for payments made within the last 5 years.
