POPULAR ACTION TO ANNOUNCE CARF'S DECISION ONLY APPLIES IN CASE OF ILLEGALITY, STJ DECIDES
Unanimously, the ministers of the 2nd Panel of the Superior Court of Justice (STJ) decided that the popular action to annul the decision of the Administrative Council of Tax Appeals (Carf) is only possible in cases of express illegality or contradiction to jurisprudence in the decision of the administrative court. . The magistrates upheld the appeal from the Armando Álvares Penteado Foundation (Faap), which defended the inappropriateness of the action and the lapse of the tax authorities' right to collect social contributions.
The popular action was filed by a tax auditor who disagreed with Carf's decision, which recognized the tax credit's expiration. Faap was fined after the inspection found irregularities that led to the loss of tax immunity, and, consequently, the Certificate of Social Assistance Charitable Entities in the Education Area (Cebas). The loss of immunity is related to the discussion about sunset, as the tax authorities claim that the five-year period only began to run after the entity was no longer immune. The tax authorities claim that, previously, it was prevented from establishing the tax credit.
According to the Treasury, in this case, article 173, I, of the National Tax Code (CTN) is applicable. The provision provides that the right to constitute the tax credit ends after five years, counting from the first day of the fiscal year following the one in which the assessment could have been made.
However, Carf decided the discussion by applying Precedent 8 of the Federal Supreme Court (STF) to the case. The statement provides that the suspension of the prescription of tax credits provided for in article 5, sole paragraph, of Decree 1569/1977 is unconstitutional, as well as the 10-year statute of limitations for the constitution of the credit in the case of social security contributions, provided for in articles 45 and 46 of Law 8,212/1991.
The taxpayer's lawyer, Marcelo Aparecido Batista Seba, argued in oral argument that the discussion went through two administrative bodies: the Federal Revenue Office (DRJ) and Carf. According to him, the discussion does not deal with article 173, I, of the CTN, but with what was summarized by the STF regarding social security contributions.
Attorney Ricson Moreira Coelho da Silva, representative of the Attorney General's Office of the National Treasury (PGFN), defended the application of article 173, I, of the CTN. Furthermore, he defended the filing of a popular action to overturn Carf's decision in the specific case, according to him because it was an “exceptional” situation, which involved an act harmful to public property. According to the prosecutor, the Federal Revenue carried out an audit at Faap and found a situation “in contravention of the law”, with private jets and accommodation in Europe paid for by the educational institution.
Union body
The rapporteur, Minister Regina Helena Costa, noted that Carf has the function of deciding on tax disputes at the federal level and its decisions are definitive, whether contrary or favorable to the tax authorities. Furthermore, he pointed out that the administrative court is a component body of the Union's structure. Therefore, its decisions are attributable to the legal entity of which it forms part, that is, the Union itself.
“We are not saying that a popular action to review the Carf act is impossible, but rather that, for this to be possible, it is necessary to verify the appropriateness of the popular action”, stated the minister. For the judge, not any Carf decision gives rise to popular action, but only those riddled with illegality, abuse of power or that contradict consolidated jurisprudence.
The rapporteur adopted a critical tone in relation to the specific case, highlighting that the author, a tax auditor from the Federal Revenue, assumed that he has been filing several popular actions to combat “the Cebas spree”. According to Costa, “in a brief consultation of the STJ website, one can see at least 200 special appeals within the scope of popular actions filed by the same popular author”. The minister also noted that the tax auditor was responsible for charging the taxpayer in this specific case.
According to the judge, the position of tax auditor does not prevent the use of the prerogative of filing a popular action as a citizen. However, she assesses that this author's case is exceptional and “may result in the subversion of the hierarchical structure and the use of popular action as an instrument of supposed revenge”.
The board unanimously followed Costa's understanding. Minister Paulo Sérgio Domingues commented that the fact that the Treasury defended the position of the author of the popular action caught his attention. “I would imagine seeing the Union defend the position of the Union, of its administrative body, which is Carf. I cannot see consistency in seeing the Treasury defend its position by annulling the decision of its administrative body”, he observed.
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Attorney Ricson Moreira Coelho da Silva said he expected the rapporteur to comment on the application of the statute of limitations under article 173, I, of the CTN. However, he said that he considered it positive that Regina Helena Costa did not speak out against the filing of the popular action itself, but only in certain circumstances. He preferred not to comment on minister Paulo Sérgio Domingues' observations.
The case was judged in REsp 1,608,161.
Source: jota.info portal