In March 2023, a long-standing discussion came to an end, in which the Taxpayers emerged victorious. The STF unanimously decided, in the judgment of Extraordinary Appeal (RE) No. 796,939 and Direct Action of Unconstitutionality (ADI) No. 4905, that the application of the isolated fine applied in cases of non-approved tax offset is unconstitutional. Both actions judged the constitutionality of the fine applied in accordance with § 17 of article 74 of Law No. 9,430/1996, which provided for a fine of 50% of the debt subject to the non-approved offset request, except in the case of false declaration presented by the taxpayer.
In the understanding of the rapporteur, Justice Edson Fachin, the fine was considered unconstitutional, since the simple failure to approve a statement of compensation is not an unlawful act that causes the application of a fine, since its automatic application without considering the taxpayer's intention consists of violating the right to petition. In turn, Justice Gilmar Mendes declared that the application of the 50% fine without the occurrence of fraud, bad faith or falsehood also violates proportionality and reasonableness.
Although all the ministers had an understanding favorable to the taxpayer, only Minister Alexandre de Moraes followed the rapporteurs with reservations, to maintain the isolated fine in case of proof of bad faith by the taxpayer through an administrative process that guarantees the adversarial system and full defense.
Thus, at the conclusion of the trial, the following thesis of general repercussion was established: “The isolated fine provided for by law to be imposed for the mere refusal to approve tax compensation is unconstitutional, as it does not constitute an unlawful act capable of giving rise to an automatic pecuniary penalty.”.
Thus, the declaration of unconstitutionality of the provision contained in Law No. 9,430/1996 makes it possible to guarantee the taxpayer's rights, making use of his/her right to compensation. Thus, the removal of the aforementioned fine, in the case of simple non-approval of the compensation request, is the end of a penalty applied supposedly to make the taxpayer more cautious, but which ended up penalizing taxpayers in good faith.
Furthermore, the decision is subject to opposition by the Federal Government through Statements of Clarification, for the eventual determination of the modulation of effects. However, it cannot be denied that taxpayers will have greater security to claim their administrative compensations.
Finally, as provided for in the Budget Guidelines Law (“LDO -2023”), the STF decision will have a significant impact on both Taxpayers and the Union's revenue, estimated at a loss of approximately R$3.7 billion over the next five years.
