By Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes*
The 1st Panel of the Superior Court of Justice (STJ), unanimously, decided that the receipt of refund requests and offset statements (PER/DCOMP) relating to a negative IRPJ or CSLL balance is subject to the transmission of the Fiscal Accounting Records (ECF).
Initially, this requirement was provided for by the Normative Instruction of the Federal Revenue of Brazil (RFB) No. 1,765/2017, creating art. 161-A in IN RFB No. 1,717/2017. This requirement is currently present in article 28 of Normative Instruction RFB No. 2,055/2021.
In October 2023, the results of the judgments of Special Appeal Appeals No. 2,156,015/SC and 2,217,732/RJ, tried by the 1st Panel of the STJ, were published. Both cases dealt with requests for offsetting using negative IRPJ and CSLL balances and discussed the legality of art. 161-A of RFB IN No. 1,717/2017, which established the transmission of the ECF as a requirement for the Federal Revenue Service to receive the “PER/DCOMPs” referring to negative IRPJ and CSLL balances. In both cases, taxpayers claimed that the Federal Revenue Service could not limit the requirements provided for by law in the offsetting, which could not be established by normative instruction.
However, in both cases, the taxpayers were unsuccessful. The 1st Panel of the STJ reiterated the case law on the subject, arguing that there would be no problems in regulating the exercise of the right to compensation through a normative act issued by the Brazilian Federal Revenue Service, as long as the parameters established in the National Tax Code were respected.
Thus, through these two judgments, the 1st Panel of the STJ reaffirms its jurisprudence that recognizes the legality of art. 161-A of IN RFB No. 1,717/2017, and consequently, of art. 28 of IN RFB No. 2,055/2021, so that taxpayers need to previously transmit the ECF before making refund requests and offset declarations.
However, if there is an error in the transmission of the records, some CARF precedents admit the possibility of rectifying the documents or admitting other documents that can prove the composition of the negative balance in the event of a factual error proven in the records. This last possibility has not yet been discussed in the Judiciary.
Our team is available to provide further clarification on this topic.
(With the collaboration of Davi Lima Matos)