Law tax

Bulletin – August 22 | Tax law – Tax authorities

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STJ RECOGNIZES POSSIBILITY OF ICMS CREDIT ON SURCHARGE TAX SUBSTITUTION

The Superior Court of Justice (STJ) granted the taxpayer the right to register the credits linked to the State VAT (ICMS) corresponding to the overpayment in the tax substitution regime. In this case, a company subject to ICMS substitution assessed and collected the tax on the basis of a presumed value established by the legislation, but the actual value of the sale was lower than this presumption.

The State of Rio Grande do Sul argued that the granting of credit would not be possible due to art. 166 of the National Tax Code, which determines that the right to refund taxes in which the financial burden is transferred to another party, such as ICMS, is attributed to the party who has borne this burden, or if this party authorizes expressly the seller to recover the tax.

However, the court rejected this allegation and based its decision on Article 10 of Complementary Law No. 87/96, which determines that the substitute taxpayer has the right to refund the amount of the overpaid ICMS substitution.

The judges also mentioned topic 201 of the general repercussion, in which the Supreme Court established that the reimbursement of the overpaid ICMS in the tax substitution scheme is due if the calculation basis of the transaction is less than the basis assumed by the legislation. For the Court, these two elements would be more precise and would authorize the tax refund, prevailing over article 166 of the CGI.

SUPERIOR COURT OF JUSTICE REVERSES MULTIPLE PENALTIES ON IMPORTATION OFFENSES

The Superior Court of Justice STJ ruled out the application of multiple fines imposed by the Brazilian federal tax authorities on a taxpayer due to irregularities in the importation of goods.

Initially, the taxpayer was fined 100% of the customs value of the goods, due to irregular entry into the country. A second fine of 100% was applied on the sales value, due to the consumption/sale of irregularly imported goods. The federal tax authorities imposed a third fine of 150% on the value of the transaction, for alleged fraud in the import transaction.

The first fine of 100% had already been rejected by an administrative judgment, the administrative council having understood that it would represent a double penalty for the same offense. The second fine of 100% was denied by the Federal Regional Court of the 4th Region and has now been confirmed by the Superior Court of Justice.

The judges held that the consumption of irregularly imported goods is directly linked to their importation. Thus, even if it would be possible to individualize the two behaviors, they would in fact represent a single offence, for which the 150% fine would already be a reasonable and sufficient penalty.

SUPERIOR COURT OF JUSTICE RULES DEBTOR MUST BE SUBMITTED BEFORE SEIZURE OF FUNDS ONLINE

The Superior Court of Justice has decided that the financial assets of taxpayers subject to tax enforcement proceedings cannot be seized through the online system (BacenJud, currently SisbaJud) before a valid subpoena in the proceedings .

The 1st Section of the Court had already decided, in a previous precedent, with binding effects, that the freezing of assets and rights depends on three concurrent conditions: (i) a valid summons from the defendant; (ii) non-payment or non-presentation of collateral assets within the legal period; and (iii) failure to locate the assets after exhaustion of due diligence carried out by the Treasury.

A fourth requirement to be met, again, is the existence in the prosecution records of (a) an application to the on-line garnishment judge and (b) the issuance of official letters to the National or State Department of Transit for search for vehicles.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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