STF will decide the constitutionality of the 50% fine in the case of an unapproved DCOMP.
The ministers of the Federal Supreme Court (STF) resumed on June 1, 2022, the trial of Extraordinary Appeal (RE) No. 796,939 and Direct Action of Unconstitutionality (ADI) No. 4905, in which it will be decided whether the tax authorities can charge a fine from taxpayers when denying a request for tax compensation, which occurs when the taxpayer uses a tax credit to settle a debt. The trial began in April 2020 and was halted by a request for special consideration by Min. Luiz Fux. Before that, Ministers Gilmar Mendes and Edson Fachin understood that the fine is unconstitutional.
The isolated fine is provided for in Article 74, paragraph 17, of Law No. 9,430/1996, establishing that if a request for compensation is not approved, the tax authorities will apply a fine of 50% on the amount of the declared and unpaid debt, unless in the case of false compensation declaration.
The subject of discussion in the cases is that the provision of this fine would discourage the right to petition, since even taxpayers who have used the offset in good faith may be penalized, also making it difficult to exercise the adversarial system and full defense. Furthermore, the provision of the fine would have a confiscatory nature and would violate reasonableness, due to its high percentage.
According to the Attorney General's Office (AGU), the isolated fine is constitutional and represents a way to encourage taxpayers to file their offset claims correctly, requiring greater diligence in filing their tax returns. Based on data from the Attorney General's Office of the National Treasury (PGFN), the AGU claims that the percentage of offsets with inconsistencies fell from 25% to 30% to 8% to 9% after the fine was imposed. Furthermore, mistakes in offset claims could violate the principle of collaboration by the Public Administration, and charging the fine would not violate the right to petition, since it would be applied after filing the tax returns.
The Court has historically considered that despite having a punitive nature, fines cannot serve as confiscation or abuse of the power to tax against the taxpayer and be set at reasonable percentages.
