The Federal Supreme Court (STF) ruled unconstitutional a legal provision that establishes the levying of a fine in the case of non-homologation of a tax offset request by the Federal Revenue Service. The decision was rendered on March 17, 2023.
The National Confederation of Industry (CNI) challenged the validity of paragraph 17 of article 74 of Law 9,430/1996 (whose wording is currently provided by Law 13,097/2015). The provision establishes the application of an isolated fine of 50% on the amount of the debt that is the subject of a non-homologated offset declaration, except in the case of falsity of the declaration submitted by the taxpayer.
It was emphasized that the mere non-homologation of a tax offset is not an unlawful act capable of giving rise to a tax penalty. Under this understanding, the automatic application of the penalty, without considerations regarding the taxpayer’s intent, is equivalent to ascribing unlawfulness to the very exercise of the right of petition, guaranteed by the Constitution.
Another position was that the application of an isolated fine for the mere non-homologation of an offset declaration, without the characterization of bad faith, falsity, willful misconduct or fraud, infringes the fundamental right of petition and the principle of proportionality.
The general repercussion thesis that was established was the following: “The isolated fine provided for in law to be levied upon the mere denial of homologation of a tax offset is unconstitutional, since it does not constitute an unlawful act with the capacity to give rise to an automatic pecuniary penalty”.
The original and complete content is on the STF website.
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Law changes the rules for settling tax and non-tax debts in São Paulo
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