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Date: March 25, 2019
Posted by: CPDMA Team

Tax authorities change judgment of repatriation cases

The Federal Revenue made a change in the rules for judging the appeals of taxpayers who had their membership canceled or were excluded from the Exchange and Tax Regularization Regime (RERCT) - the so-called repatriation program. The analyzes will follow the general rules of administrative processes. That is, the taxpayer's defense will be directed to the superintendent who is at a higher hierarchical level than the auditor who conducted the inspection process.

The deadline for filing an appeal remains the same. It is ten days from the date on which the taxpayer receives the notification. There was also no change in the judgment in a single instance - without the possibility for the taxpayer to appeal to the Administrative Council of Tax Appeals (Carf) if the request for reconsideration is denied by the IRS.

The change in the RERCT rules is contained in Normative Instruction nº 1875. It is a subtle change, but the way it was disclosed caused some confusion in the legal environment. Some lawyers understood that the Federal Revenue was allowing the taxpayer to appeal in two instances, at the regional police station and also at Carf.

This is because the text that was published in the Official Gazette (DOU), this month, does not detail the procedure. IN 1875 only revokes what was established in the rules that were edited at the time of adhesion to the two phases of the program, in 2016 and 2017.

Both Normative Instruction No. 1627, of 2016, and No. 1704, of 2017, provided that the taxpayer's appeal - in cases where the program was not accepted or excluded - would be decided, "ultimately instance, by the superintendent of the Federal Revenue with jurisdiction over the taxpayer's tax domicile".

This information was included in the sole paragraphs of articles 28 and 30 of the two INs and is precisely what is now being revoked by Normative Instruction No. 1875.

Questioned by Valor, the Federal Revenue informed that the change made to the RERCT rules only eliminates a contradiction that existed between Law No. 9,784, of 1999, which regulates administrative processes, and normative instructions 1627 and 1704. therefore, an adequacy of the rule to the procedure used for tax matters.

"These INs implied that the superintendent responsible for judging the hierarchical appeal would be the superintendent of the taxpayer's jurisdiction, when the correct superintendent is the superintendent to whom the tax auditor who conducts the procedure is subordinate," he said in a note sent to the Value.

Specialist in the area of taxation, Hermano Barbosa, from BMA Advogados, understands the change as a sign that the Internal Revenue Service has been improving its rules to inspect taxpayers who have joined the RERCT. With the change made by IN 1875, he says, the tax authorities can create specialized police stations on the subject. Thus, a taxpayer from São Paulo, for example, would not necessarily have their appeal analyzed by the local unit.

"We don't know if the IRS will do that, but this new rule allows it and would even make sense from the point of view of the IRS organization", says the lawyer.

Judgments in cases of cancellation of membership or exclusion from the program have been a matter of controversy since the time when the RERCT was instituted. There are criticisms in the legal environment both because of the deadline for the taxpayer to file an appeal, seen as too short - for most cases of tax debt challenge, for example, it takes 30 days - and because there is no possibility of appealing to Carf.

"The trial, at the Revenue, is behind closed doors. There is no possibility, as in Carf, for the taxpayer and his lawyer to attend and participate in the session", contextualizes Hermano Barbosa.

For lawyer Ana Carolina Monguilod, a partner at PGLaw, it is necessary to take into account, however, that the normative instructions of 2016 and 2017 already referred to Law No. Decree No. 70,235, which governs tax administrative proceedings.

The Federal Revenue's understanding, she points out, is that in order to have the analysis by CARF, it would be necessary to have a context of collection (of taxes, fines or penalties) and what you have in the case of repatriation would be a disqualification from the program. "It would be desirable and taxpayers would certainly celebrate if it were possible to resort to Carf, but the arguments for this to occur are fragile", he ponders.

Source: Joice Bacelo via Valor Econômico.

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