Tax Thesis – Possibility Of Judicial Discussion - Fine Of 50% Of The Credit - Non-Ratified Offsetting And Undue Or Non-Granted Refund Requests

As known, Law no. 12,249/2010 created the fines that correspond to 50% of the value of credits subject of non-ratified Offsetting Statements or undue or non-granted Refund Requests:

Type:

Applicable Single Fines

Basis on IN RFB 1,300/2012

Legal Basis

Non-granted or undue refund

50% of the credit value

Article 36

Article 74, § 15, of Law no. 9,430/96 (included by Law no. 12,249/10)

Non-ratified offsetting

50% of the credit value

Article 45, § 1, item I

Article 74, § 17, of Law no. 9.430/96 (included by Law no. 12,249/10)

What happens is that, in our opinion, such penalties are unconstitutional and illegal, mainly because, as widely known, the application of penalties is only possible in case an obligation imposed by law is not met, that is, if there is necessarily the practice of an unlawful conduct.

Along these lines, except for events of proven fraud, malice, simulation or of unstated offsetting, which are expressly prohibited by law, the mere fact of a Refund Request being dismissed or deemed undue or even an Offsetting Statement being deemed as non-ratified do not denote the practice of any unlawful conduct by taxpayers.

In fact, it can be noted that, on the one hand, the regular filing of claims of those types correspond to the exercise of the right to claim, ensured by the Constitution, on the other hand, the hearing of such claims does not characterize any violation that can be attributed to taxpayers. This analysis could, at most and in thesis, lead to the duty to pay a fee or public price, but never the application of penalties to taxpayers.

Therefore, it is clear...