By a majority of votes, the Plenary of the Federal Supreme Court (STF) deemed constitutional the imposition of a fine for late filing of tax declarations (DCTF). The sanction is provided for in article 7, item II, of Law 10.426/2002, which amends the national tax legislation.
The decision was rendered in the judgment of Extraordinary Appeal (RE) 606010, with recognized general repercussion (Theme 872), in the virtual session concluded on 8/21.
The appeal was filed by Aspro do Brasil Sistemas de Compressão para GNV Ltda. against a ruling of the Federal Regional Court of the 4th Region (TRF-4), which had deemed the collection of the fine constitutional. For the TRF-4, this is the best way to prevent the non-compliance with the ancillary obligation. In the appeal to the Supreme Court, the company argued that the measure was disproportionate and that the fine, which can reach 20% of the value of the debt, would have confiscatory effects.
Fine for late filing of tax declarations – reasonable percentage
The opinion of the rapporteur, Justice Marco Aurélio, prevailed, to the effect that there are precedents of the Court that deemed the percentage of 20% reasonable and not confiscatory. According to the Justice, the DCTF is the principal instrument of self-assessment of federal taxes. “Given the importance of the declaration, the absence or the delay in filing could not fail to entail a serious consequence for the taxpayer,” he noted.
The rapporteur recalled that article 150, item IV, of the Federal Constitution establishes that the federative entities may not institute taxes with a confiscatory effect. However, he emphasized that the Supreme Court has been ensuring the observance of the principle of non-confiscation also with respect to default penalties, due for the delay in the payment of taxes.
The rapporteur’s opinion for the denial of the company’s appeal was accompanied by the majority of the justices.
Divergence
Justice Edson Fachin dissented, considering that the sanction of an isolated fine of up to 20% for the untimely filing of a DCTF violates the constitutional principles of proportionality, ability to pay, and non- confiscation.
According to him, the taxpayer is already subject to the imposition of a default fine when the tax is due.
Thesis
The general repercussion thesis approved was as follows: “The sanction provided for in article 7, item II, of Law No. 10.426/2002 proves to be constitutional, given the absence of any offense to the principles of proportionality and of the prohibition of a tax with a confiscatory effect.”
Also read:
Extension of the filing of the EFD-Contribuições regarding April, May, and June
Source: STF
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