The trilogy on the main topics analyzed in each of the three panels of the Superior Chamber of Tax Appeals (CSRF) of the Administrative Board of Tax Appeals (Carf) in 2022, we analyze in this article the cases decided by the 3rd Panel of the CSRF and the prospects for this year.
A topic of great repercussion analyzed in 2022 was the discussion regarding the inclusion of bonuses and discounts in the calculation basis of the PIS and Cofins. The result was favorable to the taxpayer, with the application of article 19-E of Law 10,522/02 (Appellate Decisions 9303-013.339 and 9303-013.338).
The 3rd Panel of the CSRF prevailed in the understanding that discounts and bonuses do not have the nature of revenue. Both were found to be elements included in the acquisition cost and, therefore, should not be included in the calculation basis of the aforementioned contributions.
Considering that one of the board members representing the taxpayers had voted unfavorably to them, the vote of the then chairman of Carf, Carlos Henrique de Oliveira, in favor of the taxpayers was decisive for the tied vote, a result that gave victory to the taxpayers.
Another case that gained prominence involves the crediting of PIS and Cofins on the freight of finished products between establishments of the same company, for which the case law was unstable.
The cases heard in August and September of 2022 represented an important turning point in the case law of the panel. The result was favorable to the taxpayer, by majority vote, which made it possible to take credits on this expense (Appellate Decisions 9303-013.339, 9303-013.338, and 9303-013.299).
Still with regard to PIS and Cofins credits, the board recognized, by application of article 19-E of Law 10,522/02, the possibility of crediting costs and expenses arising from the resale of fuels, products taxed under the single-phase arrangement (Decision 9303-012.861).
This judgment, however, predates[1] the precedent set by the 1st Section of the Superior Court of Appeals (STJ), which, in an appeal to resolve a repetitive issue (REsp 1.894.741/RS - Repetitive Topic 1093), held that PIS and Cofins credits cannot be created on the purchase cost components of goods subject to single-phase taxation.
Regarding the discussion involving suspension of the IPI on sales of raw materials, intermediate products, and packaging materials destined for establishments engaged in manufacturing the products specified in article 29 of Law 10,637/02, for the first time, the taxpayer obtained a favorable decision from the board, with recognition of a suspension for establishments equated to industrial establishments, by application of article 19-E of Law 10,522 (Appellate Decision 9303-012.818).
Regarding the concept of billing for financial institutions, the panel maintained its understanding and considered the billing of these institutions to correspond to the total gross revenue earned, including financial revenue, since they would be the main revenue of the banking activity and, therefore, should be included in the billing of banks - the calculation basis of PIS and Cofins (Appellate Decisions 9303-013.369 and 9303-013.370).
The panel also analyzed the possibility of applying an isolated fine of 50% for non-collection of IRPJ and CSLL advances cumulated with an ex-officio fine of 75%.[2]
Although the 1st Panel of the CSRF has original jurisdiction over this matter, it has also been decided by the 3rd Panel of the CSRF, due to the extension of jurisdiction resulting from Carf Administrative Rule 15.081/20 and Carf Ordinance 12.202/21. The board ruled against the taxpayer and, by majority vote, decided finding for the possibility of maintaining the concomitant collection of penalties for taxable events occurring after 2007 (Appellate Decision 9303-012.015).
Outlook for 2023
Perhaps the biggest challenge taxpayers will face this year is the return of the casting vote in the event of a tie in the Carf's judgments. This new legal provision was established with the promulgation of Executive Order 1.160/23 and the consequent revocation of article 19-E of Law 10,522/02, according to which the judgment should be resolved in favor of the taxpayer in the event of a tie vote.
The new Executive Order 1.160/23 may reverse the results of the judgment of several issues that have been resolved in favor of the taxpayer in administrative litigation.
Specifically in relation to the 3rd Panel of the CSRF, a major change in the official composition of the panel is expected in 2023, since the terms of office of the four members representing taxpayers end in June, with no possibility of reappointment. This circumstance will lead to the appointment of new board members in a proportion that has not occurred since Operation Zelotes in 2016.
Still in relation to the 3rd Panel of the CSRF, responsible for judging issues related to PIS and Cofins, a point that deserves attention is the publication, in December of 2022, of RFB Normative Instruction 2121/22, which consolidates rules on the calculation, collection, inspection, payment, and administration of contributions. The new standard replaces RFB Normative Instruction 1.911/19 and brings in relevant innovations especially on the use of credits, which should have repercussions on the judgments of the panel.
The retrospective of the main cases decided by the Carf's Superior Chamber in 2022 shows that the body has been playing a central role in the formation of theories and case law on tax matters, whether because of the quality and depth of the discussions, the complexity and specificity of the cases, or the amounts involved.
Changes in the case law of some topics are expected for 2023, especially with the return of the casting vote. Attention should be redoubled for those theories that have been decided in favor of the taxpayer based on article 19-E of Law 10,522.
In any case, we hope that the body maintains the quality standard of judgments observed in recent years, so that the institution is strengthened and continues to act as the main mechanism for reviewing administrative acts, with the ultimate goal of reducing judicial disputes.
[1] The Carf judgment took place in the February 16, 2022 session and the appellate decision was published on April 25, 2022. The STJ's repetitive appeal was heard on April 27, 2022, and the appellate decision was published on May 5, 2022.
[2] See an article published on Machado Meyer's Legal Intelligence webpage on the subject.
