STJ RECOGNIZES THE POSSIBILITY OF CREDITING ICMS ON OVERCHARGED TAX SUBSTITUTION
The Superior Court of Justice (STJ) granted a taxpayer’s right to register credits related to State VAT (ICMS) correspondent to the overpayment in the tax substitution regime. In this case, a company subject to the ICMS-substitution assessed and collected the tax based on a presumed value stated by the legislation, but the real value of the sale was lower than such presumption.
The State of Rio Grande do Sul argued that crediting 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 the ICMS, is assigned to the party which supported such burden, or if such party expressly authorizes the seller to recover the tax.
However, the Court dismissed such allegation and based the decision on article 10 of Complementary Law nº 87/96, which determines that the substitute taxpayer is entitled to refund the amount of the overpaid ICMS-substitution.
The Judges also mentioned Topic 201 of General Repercussion, in which the Supreme Court established that the refund of the overpaid ICMS in the tax substitution regime is due if the calculation basis of the transaction is lower than the base assumed by legislation. For the Court, these two factors would be more specific and would authorize the tax refund, prevailing over article 166 of the National Tax Code.
SUPERIOR COURT OF JUSTICE CANCELLED MULTIPLES PENALTIES ON INFRACTION RELATED TO IMPORTATION
The Superior Court of Justice STJ ruled out the application of multiple fines imposed by the Brazilian Federal Revenue on a taxpayer due to irregularities in the importation of goods.
Initially, the taxpayer had been penalized with a fine of 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 Revenue 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 dismissed in an administrative judgment, as the Administrative Counsel understood it would represent a double penalty for the same infraction. The second fine of 100% was denied by the Federal Regional Court of the 4th Region and now confirmed by the Superior Court of Justice.
The Judges sustained that the consumption of irregularly imported goods is directly related to their importation. Thus, even though it would be possible to individualize the two conducts, they would in fact represent a single offense, to which the fine of 150% would already be a reasonable and sufficient punishment.
SUPERIOR COURT OF JUSTICE DETERMINES THAT THE DEBTOR MUST BE SUBPOENAED BEFORE ONLINE SEIZURE OF FUNDS
The Superior Court of Justice 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 proceeding.
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 requirements: (i) valid subpoena of the defendant; (ii) non- payment or non-presentation of assets in guarantee within the legal term; and (iii) failure to locate assets after exhaustion of the diligences carried out by the Treasury.
A fourth requirement to be observed, still, is the existence in the lawsuit records of (a) a request to the judge for online seizure and (b) the issuance of official letters to the National or State Department of Transit to search for vehicles.
For further informations, contact:
José Flávio Pacheco
Luís Flávio Neto