OAB takes an agreement with the government to the Supreme Court to maintain a casting vote on Carf

The website Legal Consultant reported that the OAB reached an agreement with the federal government for a proposal that establishes limits for the return of the casting vote in Carf (Administrative Council of Tax Appeals). ConJur discussed the matter and heard from several experts, such as Dr. Eduardo Maneira, partner at Maneira Advogados.

OAB takes agreement with government to the Supreme Court to maintain a casting vote on Carf

February 15, 2023

By José Higídio

The OAB Federal Council sent to Minister Dias Toffoli, of the Federal Supreme Court, the agreement made with the federal government to establish limits on the return of the casting vote in the Administrative Council of Tax Appeals (Carf).

In the document, the OAB Nacional asks that the quality vote be considered constitutional only when it meets certain conditions. The main one is the exclusion of fines and interest in judgments in which there is a tiebreaker in favor of the Tax Authorities.

The request also involves the cancellation of tax representation to investigate possible crimes against the tax system and Social Security.

Disregarding fines would also apply to cases already judged by Carf, but still pending analysis by the competent Federal Regional Court.

The elimination of interest would depend on the taxpayer's statement to pay the tax debt within 90 days, in up to 12 installments. Failure to pay any installment would result in interest being charged.

For such payment, it would be possible to use tax loss credits and CSLL negative calculation basis, in addition to court orders for amortization or settlement of the remainder.

The OAB also requests that, in cases resolved by the casting vote, the credits included in the Union's active debt can be negotiated through a specific tax transaction. The Attorney General's Office of the National Treasury (PGFN) would have the role of regulating such a hypothesis.

Finally, the entity requests that all debt collection acts be suspended once a guarantee is presented for credits resolved favorably to the Public Treasury.

Controversy
The proposal was filed in the files of the direct action of unconstitutionality (ADI) in which the OAB initially asked for the overturn of the Provisional Measure 1.160/2023, which reinstituted the quality vote.

The terms were negotiated this Tuesday (14/2) with the Minister of Finance, Fernando Haddad. In the petition sent to the STF, the OAB informed that it also met with the PGFN, representatives of large taxpayers and lawyers specializing in the subject.

In January, when it was published, the MP — which must still be voted on by Congress — was criticized by tax experts. For them, the return of the quality vote is a setback and will enable an increase in judicialization.

The negotiated proposal does not remove the possibility of suing the Judiciary, but it is viewed favorably by a portion of lawyers specializing in the subject. The estimate is that the amount to be paid in cases of this type can be reduced to 30% of what would come with fines and interest.

The solution to remove fines had already been suggested by tax expert Fernando Facury Scaff, columnist for the electronic magazine Consultor Jurídica, in your text from the 23rd. According to him, the proposal maintained “the principle of in dubio for the taxpayer in a mitigated way, that is, if there is a tie in the judgment by Carf, the taxpayer is relieved of the fines.”

The idea was taken up by the business sector, which the presented to the minister and ended up resulting in the agreement, which, again in the words of the lawyer, “is characterized as a formula for dialogue between the Institutions”.

Another lawyer interviewed by ConJur called the agreement “a plan B, if the MP is approved in Congress — which is likely”. According to him, "common sense prevailed. The agreement eliminates the possibility of criminal representation. Of course, if the taxpayer has a consistent thesis that is worth insisting on, there will always be the possibility of going to court."

Eduardo Maneira, partner at the Maneira Advogados office and professor at the Federal University of Rio de Janeiro (UFRJ), sees the proposal as an extraordinary advance: “By defining that no fine will be levied, with retroactive application, the application of the principle in dubio pro reo,stipulated in the article 112 of the National Tax Code, significantly reducing the amounts required in administrative processes and tax executions.”

For tax expert Igor Mauler Santiago, also a columnist at ConJur, “the ideal would have been to extend the incentive for regularization to other scenarios besides the draw, even with a smaller reduction of fines and interest, and guarantee to the taxpayer who loses due to the casting vote the right to discuss without guarantee at least until the first degree sentence”. However, he understands that the “possible agreement” has been reached, which represents an “important step”.

However, there is another trend among tax experts who do not see the agreement as a solution to the problem. The main criticism still refers to the possibility of an increase in the number of cases brought to justice.

Felipe Santos Costa, partner at MV Costa Advogados, points out that a charge based on a trial resolved by a casting vote is still “a highly questionable operation”, as there was doubt and no majority was formed. Thus, the measure “ends up maintaining litigation levels” and does not achieve the objective of reducing judicialization.

In the view of Gustavo Taparelli, partner at Abe Advogados, “negotiating the maintenance of the casting vote by granting partial benefits to taxpayers makes understanding the tax system even more difficult and does not help with reducing bureaucracy.”

Click aqui to read the OAB petition
ADI 7.347

José Higídio is a reporter for the magazine Consultor Jurídica.

Legal Consultant Magazine, February 15, 2023

https://www.conjur.com.br/2023-fev-15/oab-envia-stf-proposta-voto-qualidade-limites