Operations involving the insertion of a legal entity to underinvoice sale prices constitute abusive and unlawful tax planning. This understanding was established, unanimously, by the 1st Ordinary Panel of the 2nd Chamber of the 3rd Section of the Administrative Council of Tax Appeals (Carf).
In this case, the panel examined a challenge to tax assessment notices in which the taxpayer was summoned by the tax authority to present extensive accounting and tax documentation, such as the articles of association and amendments thereto, and reduced the fine from 150% to 75%.
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In practice, the tax authority found underinvoicing in the sales of manufactured products — under the single-phase taxation system — between companies belonging to the same economic group.
In his vote, the reporting counselor, Paulo Roberto Duarte Moreira, held that the underinvoiced sale, simulated by an industrial company to a commercial company linked to the same economic group with the sole purpose of considerably reducing the taxation of PIS and Cofins, constitutes an abusive and unlawful act.
“Simulation and underinvoicing are characterized in the tax planning at issue, since there was the improper introduction of a legal entity, in the capacity of a wholesale-commercial entity exclusively responsible for selling to consumers the products acquired from the manufacturer-seller, generating a reduction in the gross revenue of the industrial company.”
According to the reporting counselor, the company’s managers who, by act or omission, jointly carried out with the taxpayer the conduct described in the law, should not be jointly liable for the tax credit, pursuant to the National Tax Code.
“It is not enough to characterize the joint tax liability of the partners that they are merely exercising an administrative partnership role in the assessed legal entity. The willful conduct must be evidenced and whoever practiced it must be identified so that such person may be held jointly liable,” he explains.
Source: Conjur/Gabriela Coelho
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