Case involves a Collective Writ of Mandamus
In a recent decision (05/12/2021), Judge Cristiane Farias Rodrigues dos Santos, of the 9th Federal Civil Court of São Paulo, granted an injunction guaranteeing the filing of an individual tax settlement for debts entered into active debt, whose consolidated value is equal to or less than R$ 15,000,000.00, suspending the effects of Article 4, § 1, of PGFN Ordinance No. 9,917/2020. The news was published by hondatar.com.br.
The case involves a Collective Writ of Mandamus filed by the Brazilian Taxpayers Association, under the allegation that the minimum threshold of R$ 15 million for the individual tax settlement (a settlement modality proposed by the taxpayer himself), imposed by PGFN Ordinance No. 9,917/2020, would have exceeded the legal criteria of the “Legal Taxpayer Law” – No. 13,988/2020.
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According to the association, Law No. 13,988/2020 does not impose quantitative limits on the modalities of tax settlement (whether by individual proposal or by adhesion), for the collection of credits entered into the active debt of the Federal Union, of its autarchies and public foundations, or in the collection of credits that fall under the jurisdiction of the PGFN.
On the other hand, PGFN Ordinance No. 9,917/2020, which governs the procedures, requirements and conditions for carrying out the tax settlement, by providing that “[the] settlement of debts entered into the active debt of the Union whose consolidated value is equal to or less than R$ 15,000,000.00 shall be carried out exclusively by adhesion to the proposal of the Office of the Attorney General of the National Treasury, with the non-acceptance of individual proposals being authorized in these cases”, would have exceeded the limits of the Law itself, which is not permitted on account of the violation of the principle of legality.
Tax settlement as an alternative
In its defense, the Attorney General’s Office argued for the dismissal of the action, under the allegation that the tax settlement is a form of extinguishing the tax credit and that the Federal Union, in an assessment of opportunity and convenience, may or may not enter into a settlement in any of the modalities provided for by Law, whenever, with due justification, it understands that the measure serves the public interest.
Thus, it argues that the financial limitation imposed by PGFN Ordinance No. 9,917/2020, of R$ 15 million to propose the individual tax settlement, does not offend any legal principle.
According to the judge, Law No. 13,988/2020, which addresses the tax settlement, in its Article 10, does not impose value limits for granting the tax benefit, nor does it delegate to the Tax Administration the power to impose value limits on debts eligible for settlement (except settlement by adhesion in tax litigation of small value – see Art. 23, item I), there being no possibility for an ordinance or even an eventual normative instruction to innovate upon the text of the ordinary law.
“Thus, it cannot impose a limiting condition on the tax benefit with respect to the value of the tax debt for adhesion to the respective settlement, under penalty of violating the principle of legal reserve in tax matters”.
It is important to highlight that the injunction decision is not final, since it may still be the subject of an appeal by the PGFN.
In any case, the aforementioned injunction is an important milestone for those taxpayers who are interested in proposing an individual settlement, but who are prevented from doing so on account of the quantitative criterion imposed by the PGFN Ordinance. And, if this is the case, it is recommended to file a Writ of Mandamus in order to attempt to obtain a court decision that sets aside the imposed limit of R$ 15 million.
Source: www.hondatar.com.br
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