A feasible agreement around the casting vote – 05/10/2023 – What is this tax

In the tax jungle, the proposal still reverberates in the understanding of the casting vote in CARF (Administrative Council of Tax Appeals), whereby, in the event of a tie, the tax requirement or the disallowance of the credit that the taxpayer understood is maintained. be entitled to use through compensation.

The topic was raised to trending topics beyond the legal world. Without going into the assessment of quantitative percentages of decisions one way or another and, mainly, ignoring that both the tax authorities and taxpayers are right, we now have one more chapter in this complex plot.

Last Friday, the government, even failing to see its attempt to use the extremely technical Administrative Court as a mere measure of collection, since it did not manage to obtain approval by the National Congress, insists on the idea, by sending, now, in the form of a bill on an urgent basis. It even ignores the drafted agreement between the OAB and the Federal Supreme Court, by maintaining the very same wording of the provisional measure.

In view of this new political movement made by the Central Power, and the “agreement” entered into a corner, it remains at stake, objectively, to know who takes advantage of the tie in a vote that took place in Carf, which has an even number of judges. The so-called joint court (and for it to remain so, no one can count for two).

To the Tax Authorities, what was it like for the vast majority of the body’s existence, even under another name? To the taxpayer, from 2020? If to the Tax Authorities, what to do with the processes that were judged under the old rule?

Those who have militated for many years, even before Carf himself, in the administrative court to resolve federal tax administrative proceedings, are witnesses to the excellence of the body and the technical expertise of its judgments.

This is perhaps the only unanimity in the stir.

That is, no one more than CARF, through its judges, is aware of the technical issues of tax law and its tangle of rules and obligations. How well coined the gaucho Alfredo Augusto Becker, calling our system a legal-tax madhouse, the judges of the Council are the psychiatrists who hold the drugs to control the crises of madness. The most sensible revelers at the tributary carnival.

With this assumption, we have two major scenarios ahead of the possible delineation of the fact submitted to the court’s appreciation that could be taken into account by the new legislation that is intended to (re)erect.

In the first, as the subject matter of the tax requirement is submitted to the court’s appreciation exclusively or mainly technically, relating to or relating to a procedure or method, in the event of a tie in the vote, sufficient reasonable doubt is admitted for an analogous “presumption of innocence” and the taxpayer sees the tax requirement canceled and/or its credit recognized. So the taxpayer wins.

In turn, in a second spectrum of possibilities, if the discussion of the matter carries a strictly legal nature, the tie favors the Tax Authorities, leaving the taxpayer, if he so wishes, to take the discussion to the judiciary.

I believe that this formula, in addition to being the most equitable for the parties involved in the tax administrative process, gives prestige, on the one hand, to the undisputed technical aspect of CARF and, on the other, the competence, in the end, definitive of the Judiciary in the interpretation of laws.

This avoids the judiciary having to decide on issues that are extraneous to its day-to-day life, needing to rely on judicial expertise, which is time-consuming and costly, as well as giving a single person the primacy of having their vote carried by a double weight, as if a public administration superhero were.

Some possible anomalies are also avoided, such as the coexistence of antagonistic final decisions on the same subject, one issued by the public administration and another by the Judiciary.

If there is no longer a judicial res judicata, what about the administrative one! But that’s another five hundred. I therefore leave this suggestion so that things can settle down in the political field, without harming good tax and fiscal policy.

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