Following the Supreme Federal Court (STF), the Administrative Council of Tax Appeals (Carf) dismisses the 50% penalty for unapproved offset.
Unanimously, the Administrative Council of Tax Appeals (Carf) dismissed the 50% isolated penalty on the amount of the tax credit subject to an unapproved offset.
The case is under process number 11080.728627/2018-30. The outcome 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, involving the same taxpayer.
The board applied the decision of the Supreme Federal Court (STF) in extraordinary appeal (RE) 796,939 (Theme 736), through which, in March, the penalty provided for in article 74, paragraph 17, of Law 9,430/96 was considered unconstitutional.
The understanding of the rapporteur, councilor Neudson Cavalcante Albuquerque, prevailed, that the case fits within the hypothesis provided for in article 62 of Carf’s internal regulations, which deals with the application of STF decisions by the administrative tribunal.
According to article 74, paragraph 17, of Law 9,430/96, invalidated by the Supreme Court, if the tax authority denies the request for tax offset – that is, the use of a credit with the public treasury to settle a debt – because the taxpayer is not entitled to such credit, the Federal Revenue could apply a penalty of 50% on the declared
and uncompensated debt.
The Supreme Court invalidated the provision unanimously. The justices understood that the penalty was not applicable, as the non-approval of the offset 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.