Return of Carf’s “quality vote” goes against the taxpayer, says association

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The Parliamentary Front for Entrepreneurship (FPE) released a report in which it supports the maintenance of the rule that favors the taxpayer in judgments at the Administrative Council of Tax Appeals (Carf).

This change is part of the measures presented by the Minister of Finance, Fernando Haddad, the portfolio’s first package of determinations for the economic area. Called “Fiscal Recovery Measures”, it aims to optimize the government’s fiscal situation and, according to the minister, has the potential to reduce the public accounts deficit from the 2.3% currently forecast for 2023 to less than 1%. of GDP. “Our target is to leave the primary deficit for 2023 between 0.5% and 1%; we’re going to pursue that,” Haddad said.

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Among the measures involving the Carf (Administrative Council of Tax Appeals) – which still requires Congressional approval – is the return of the casting vote, overturned by Law 13,988/2020. Since 2020, the rule states that ties are decided in favor of the taxpayer.

According to the FPE, before the amendment, the “quality vote” – a kind of double vote – determined that, in the event of a tie, the president’s vote would prevail. I mean, it’s worth twice as much. “It so happens that, as the president of the classes is always a representative of the Treasury, his vote almost always (more than 99% of the times) was cast against the interests of taxpayers”, he points out.

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The report shows that, with the extinction of the vote in favor of the Tax Authorities, the Federal Revenue calculated that around R$ 11 billion would be reversed in causes in favor of the taxpayer. That’s because the Revenue would no longer win these causes with the legislative change, that is, billions of reais in victories would start to be directed to the taxpayer.

“The results in favor of the taxpayer are low in cases of ex officio and special appeals, with a more significant number in the case of voluntary appeals, but even so, only 19.61% of the total”, he highlights.

The body also highlights that the fact that this tiebreaker criterion creates a “super judge” must be considered, who will be entitled to two votes, one ordinary, being on the same level as the other judges, and another extraordinary, repeating his vote for break the tie, “perversely violating isonomy, ample defense and due process of law”.

“The taxpayer, in this way, will always start the administrative process in a harmful way, since the Tax Authorities, from the first moment, will have an advantage with the return of the casting vote”, points out the document.

Tax recovery measures

The tax lawyer and owner of the Twitter profile “Duquesa de Tax”, Maria Carolina Gontijo, explains that, today, the country has appeals for judgment – ​​first administrative, with six years, and then judicial, with nine years.

According to her, these measures presented by the Minister of Finance will encourage people to replace this time-consuming process with discounts on litigation fees.

“What happens at CARF: the person who received a fine due to some understanding of the Federal Revenue will discuss this infraction within the administrative phase, either at the DRJ (Judgment Police Stations), or up to the upper chamber. It means that, when you receive a fine, the offender will respond to it and then appeal within this administrative structure”, he shows.

What this change is offering, according to the lawyer, is for these offenders to give up the processes – which today are around 30,000 processes at CARF and 170,000 at the police stations – in exchange for these discounts ranging from 40% to 50%. “This is nothing more than Refis do Carf”, exemplifies Gontijo.

For Legal Entities — most impacted by this change — Gontijo points out that the positive point is the possibility of using the tax loss. “Today, it is a value that is stuck in companies and they are unable to flow, unless it will compensate with some profit that it had in the previous period”.

zero litigation

“The company ends up having this possibility of using this tax loss that was stopped. It’s forgotten money, like a mattress. You will be able to use these resources even to settle this Litigation Zero program, if you join”, explains Gontijo.

The lawyer points out that there will also be benefits for taxpayers who make this structural alignment for the following years, having up to 12 months to pay. “That is, it is a Refis, however, of someone who is already in this administrative process”.

In this document, the lawyer points out that there are other advantages, such as the end of the official appeal. “Today, when the Treasury loses, it automatically appeals. The proposal is that, if the taxpayer wins in the first instance and the letter is less than R$ 15 million, the litigation is extinguished at once and takes away some of the Carf processes”.

The lawyer believes that it is a matter of trying to adapt Carf. “The body had its sessions suspended in January, precisely to implement these measures. So, cases below a thousand minimum wages will be definitively judged in the police stations and will only reach CARF if the case is very large, reducing the amount and time for solving disputes”.

Source: CNN Brasil

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