The Brazilian Supreme Federal Court – STF decided, unanimously, that the isolated fine of 50% (fifty percent) on the amount of the debt charged from taxpayers by disregard of credit compensation not accepted by the IRS was declared unconstitutional.
According to rapporteur Edson Fachin the fine is unconstitutional “because it does not consist of an unlawful act with the ability to provide automatic penalty”.
The fine of 50% was established in 2010 by Law 12,249 and, based on it, the Treasury charged the aforementioned punitive fine, in addition to the moratorium fine of up to 20%, plus Selic interest.
The decision was handed down by the Plenary of the STF, when assessing issue 736, with general repercussion, and defending the following thesis: “The isolated fine on the mere denial of approval of tax compensation for not consisting of an unlawful act with the ability to provide automatic pecuniary penalty, provided for in law, is deemed unconstitutional”.
From now on, the Treasury is not allowed to collect the 50% fine when denying a request for reimbursement and not approving the statements of credit compensation presented to the Internal Revenue Service. Thus, all current cases must be upheld in favor of taxpayers.
For further information, contact Fernando Giacon Ciscato, Leading Attorney in Tax Litigation at Ronaldo Martins & Advogados, Attorneys at Law: fernando.ciscato@ronaldomartins.adv.br ,
Phone: (11) 94537-5906.
