Late payment fines can be waived when there is a spontaneous report before the inspection begins. This is how the 1st Ordinary Panel of the 3rd Chamber of the 3rd Judgment Section of the Administrative Council of Tax Appeals established, following the understanding of the Superior Court of Justice. The judgment was published on 6/24.
Fines for late payment are waived for spontaneous reporting, defines Carf.
The understanding of the rapporteur, counselor Salvador Cândido Brandão Junior, prevailed. According to him, it is already a consolidated understanding in the STJ, including under the rite of repetitive, that the spontaneous complaint also removes the late payment fine.
"Spontaneous denunciation is configured in the event that the taxpayer, after making the partial declaration of the tax debt accompanied by the respective full payment, rectifies it before any procedure by the Tax Administration, notifying the existence of a greater difference, whose discharge takes place concurrently", he explains.
For the counselor, before the inspection start time, according to article 196 of the CTN, the taxpayer can spontaneously declare a tax amount due and not declared at the time provided for in legislation, constituting this tax credit with the monitoring of the tax amount and interest late payment, but exempt from penalties.
"If the taxpayer only collects in arrears an amount of tax already declared and constituted, this taxpayer will not enjoy the benefit of spontaneous denunciation, as there is no denunciation, only an untimely payment. This is also the understanding of the STJ", he says.
According to the counselor, there is no controversy that the case is a case of spontaneous denunciation. "The Tax Authorities' divergence lies solely in the argument that the spontaneous complaint does not exclude the late payment fine, since the late payment fine would not have a punitive nature. However, such an understanding does not deserve to prevail. late payment fines and ex officio fines, both having a punitive nature", he explains.
In this case, the collegiate analyzed a tax assessment notice to establish a tax credit arising from late payment of IOF, however, without the payment of the late payment fine.
For inspection purposes, the spontaneous reporting institute provided for in article 138 of the CTN excludes only the payment of the punitive fine, but not the late payment fine. Thus, according to the Tax Authorities, when making the payment without computing the late payment fine, the taxpayer did not pay the IOF in full, which led to the assessment.
Source: Gabriela Coelho via Conjur.