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Date: 11 de October de 2022
Posted by: CPDMA Team

First steps to understand the tax transaction

Imagem da Dra. Claudia Gardin Martins, da equipe CPDMA, autora do artigo sobre transação tributária.

Although it is a very fashionable subject in recent times, it is curious to clarify that the tax transaction is foreseen as one of the ways to extinguish the tax credit since the enactment of the Law No. 5.172In its article 171, of October 25, 1966 (the National Tax Code). Since then, studies and proposals have emerged on the subject that intend to bring alternatives for the solution of tax conflicts.

It was with Provisional Measure No. 899 of 2019known as the Legal Taxpayer MP, that the institute gained greater prominence in the country. The explanatory memorandum, on this occasion, addressed the intention to "create mechanisms that induce self-composition in tax cases", allowing to bring effectiveness in the recovery of the tax credit and reduce costs, loss of efficiency and losses to the Federal Tax Administration. This normative act allowed the creation of an environment of dialogue between taxpayers and Tax Administration, observing, by the latter, the judgment of opportunity and convenience, aiming to meet the public interest.

Here it is important to relate these tax norms with what was also proposed by the Civil Procedure Code of 2015, when seeking to establish alternative means for solving legal problems, under the premise of cooperation between the parties involved. This alignment of legal norms is nothing more than enforcing the fundamental guarantee of reasonable duration of the process, ensuring the speed of proceedings, as defined by the Federal Constitution.

It is clear from the outset that to analyze the tax legislation regarding the transaction (and the institute of legal procedural business, which will be dealt with in a separate article) is to be faced with mechanisms that aim to harmonize the composition of interests, as well as to prevent and solve disputes involving the government, with respect to the tax credit, and the taxpayer with respect to the protection of their fundamental rights of freedom and property, among others.

By means of acts disposing of rights the aforementioned MP 899/2019 provided for the possibility of negotiating debts entered in the federal active debt, whether at the proposal of the National Treasury Attorney General's Office, individually or by adhesion, or by the debtor taxpayer himself, as well as adhesion in cases of judicial and administrative litigation of relevant and widespread legal controversy and of cases of low value involved.

Later converted into Law 13.988/2020The regulations that followed were restricted to the first hypothesis, i.e., negotiation only in relation to those amounts that were under PGFN's administration - registered as federal active debt. Recently, with the publication of Law No. 14.375, of June 2022is that the transaction in the collection of credits administered by the Federal Revenue Service of Brazil has been regulated.

Since the implementation of the federal tax transaction instrument by the measures reported, what can be noticed is an attempt of a more conciliatory approach by the Tax Authorities, through the provision of mutual concessions between the parties with the purpose of tax regularization - emphasizing, therefore, the real sense of the tax nature adopted. There is no denying the existence of several criticisms to the current situation (which will be deepened in our next articles), especially regarding the publication of the PGFN Administrative Rule no. 6,757/2022which restricts the benefits listed, leading to a probable increase in litigation in the judicial sphere. This consequence goes against the essential foundation of cooperation between the government and taxpayers.

However, the regulation of article 171 of the CTN can be seen as the opening of doors to a more effective way to solve tax problems, with constitutional support. Guided by dialogue and by the mutual provision of interests between the parties, the transaction may be a "turning point" in the relationship between the public administration and taxpayers, improving the tax credit recovery system.

By: Claudia Gardin Martins
CPDMA Team - Tax

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