The month of July in the Administrative Board of Tax Appeals (Carf) was marked by the long-awaited return of in-person judgment sessions, after more than two years of exclusively virtual sessions. The 1st Panel of the Superior Chamber of Tax Appeals (CSRF) was the only one, for now, to resume in-person work at the agency.
The session took place in a hybrid model, with the remote participation of board member Edeli Pereira Bessa. Even in the face of various oral arguments and some technological connectivity challenges, all 63 cases on the agenda were reviewed by the panel.
Of the cases actually tried, the number of appeals denied certiorari and the rigorous analysis of the criteria for admissibility of the special appeals by the body are noteworthy.
In the July session, a significant number of appeals not admitted dealt with the legitimacy of the application of a qualified fine (150%, based on paragraph 1 of article 44 of Law 9,430/96) in assessments resulting from disallowance of amortization of goodwill.
In these cases, the predominant reason cited by the panel for non-admission of appeals, whether from the taxpayer or the National Treasury, was the lack of divergence of understanding between the decisions under appeal and decisions submitted as paradigms.
More specifically, in these cases, the panel has been maintaining the understanding that the particularities of each corporate reorganization transaction that generated the goodwill end up differentiating one judgment from the other, not because of divergence of interpretation of the legislation, but because of the facts.
In the judgments that went beyond the admissibility barrier and effectively entered issues of the merits, several discussions were taken up by the panel, which, with new members, had the participation of Carf's chairman, board member Carlos Henrique de Oliveira, and the new full board member, Gustavo Fonseca.
What most called the attention of taxpayers was the change in the understanding of the panel regarding the possibility of deducting expenses with goodwill amortization from the CSLL (Social Contribution on Net Income) tax basis. By the end of 2021, the board members, by application of article 19-E of Law 10,522/02, had recognized the taxpayers' right to make the deduction from the calculation basis.[1]
When the discussion was resumed in the July session, the majority of board members voted to maintain the tax disallowance, under the argument that there is no provision allowing the deductibility of these expenses, unlike what occurs in the calculation basis of the IRPJ (Corporate Income Tax) - article 25 of Decree-Law 1,598/77.
It was also argued that, although article 57 of Law 8,981/91 provides that the rules for calculation and payment of the IRPJ apply to the CSLL, the provision itself states that "the tax basis and tax rates set forth in the legislation in force shall be maintained." Therefore, there is no doubt that, in legislation, not all exclusions and additions for one tax work for another.
In the current composition of the panel, board members Gustavo Fonseca and Carlos Henrique de Oliveira, who voted against the theory defended by the taxpayer and thus confirmed the change in the board’s understanding, had not yet opined on the matter.[2]
Another relevant topic decided in the July session, this time in favor of the taxpayer, was the illegitimacy of the 30% limit for offsetting the IRPJ/CSLL tax losses of a defunct company.
This discussion had already been decided in a manner favorable to the taxpayer (including contrary to the position of the Superior Court of Appeals in REsp 1.925.025/SC and REsp 1.805.925/SP). The innovation was the statement of vote of the chairman of Carf, for whom the 30% lock is applicable within a normal situation of a company's life (affiliating it with the principle of continuity of legal entities). In the event of its termination, the limitation on the loss deduction should not apply. Thus, the taxpayer's special appeal was accepted by a majority vote.[3]
The chairman of Carf also expressed his position in favor of canceling the assessment on revenues from investment subsidies. The case concerned IRPJ and CSLL collections for the calendar years 2011 and 2012 on ICMS presumed credit amounts granted by the State of Paraíba.
With the vote of the presiding board member, the 1st Panel of the CSRF formed a majority and cancelled the assessment, on the understanding that Complementary Law 160/17 settled discussion on the matter - differentiation, for taxation purposes, of investment subsidies and cost subsidies, equating the legal consequences of these two concepts.[4]
The return of in-person judgment sessions, even if initially only of the 1st Panel of the Superior Chamber of Tax Appeals, certainly represents a breakthrough in the return to the pre-pandemic scenario. Relevant and dense topics were brought up for discussion, and the good management of the work allowed the agenda to be fulfilled, something that has not happened in a board meeting of Carf.
In 2022, a movie already seen in 2018 will be repeated, with the expected end of the tax auditors' strike movement and effective regulation, or not, of productivity bonuses, such that Carf judgments can be fully resumed. This time, with the possibility for the sessions to take place virtually, in person, or hybrid, without giving up the debates and judgments on highly complex issues and large amounts of money.
[1] Appellate Decision 9101-005.936
[2] Administrative Proceeding 16561.720109/2013-74
[3] Administrative Proceeding 19515.005446/2009-03
[4] Administrative Proceeding No. 10480.725593/2015-11
