By unanimous decision, the 1st Panel of the 2nd Chamber of the 1st Section of the Administrative Council of Tax Appeals (CARF) dismissed the standalone 50% fine on the tax credit amount subject to unapproved compensation.
The case is filed under number 11080.728627/2018-30. The ruling was also applied to cases 11080.728683/2018-74, 11080.729014/2018-10, 11080.729279/2018-18, 11080.729385/2018-00, and 11080.729346/2018-02, all involving the same taxpayer.
The panel applied the Supreme Federal Court’s (STF) ruling in Extraordinary Appeal (RE) 796,939 (Topic 736), which, in March, declared the penalty set out in Article 74, paragraph 17, of Law 9,430/96 unconstitutional.
The understanding of the rapporteur, Councillor Neudson Cavalcante Albuquerque, prevailed — that the case fits the scenario outlined in Article 62 of CARF’s internal regulations, which governs the application of STF decisions by the administrative tribunal.
According to Article 74, paragraph 17, of Law 9,430/96 — overturned by the Supreme Court — if the tax authority denies a request for tax compensation (i.e., the use of a credit with the tax administration to settle a debt) on the grounds that the taxpayer is not entitled to that credit, the Federal Revenue Service could impose a 50% fine on the declared and uncompensated debt.
The STF unanimously invalidated the provision. The justices ruled that the fine was not applicable since the non-approval of the compensation declaration does not constitute an unlawful act.
Source: https://www.jota.info/tributos-e-empresas/tributario/seguindo-stf-carf-afasta-multa-de-50-por-compensacao-nao-homologada-18042023#:~:text=Por%20unanimidade%2C%20a%201%C2%AA%20Turma,objeto%20de%20compensa%C3%A7%C3%A3o%20n%C3%A3o%20homologada.
