Taxpayers who are fined by the Brazilian Federal Revenue Service may pay the ex-officio and individual fines together, according to a new understanding of the Higher Chamber of Tax Appeals (CSRF). This new decision is extremely important as it allows the accumulation of fines applicable to the collection of debits regarding Corporate Income Tax (IRPJ) and Social Contribution on Net Profits (CSLL), reversing the previous understanding laid down by Precedent No. 105 of the Administrative Tax Appeals Board (CARF). In CARF′s understanding, the individual fine due to the failure to collect the estimated monthly amounts could not be demanded at the same time as the ex-officio fine due to the lack of payment of IRPJ and CSLL; therefore, only the latter should survive.
The board members decided that CARF′s precedent referred to the previous wording of Article 44 of Law No. 9,430/1996, which set the same calculation base for the individual and ex-officio fines, that is, the "total amount or difference of the tax or contribution" . With the enactment of Law No. 11,488/2007, some items were created to include separate legal provisions for the individual fine, whose calculation base is now the "monthly payment amount", and for the ex-officio fine, which will continue to apply on "the total amount or difference of the tax or contribution."
The rapporteur of the case, Marcos Aurelio Valadão, understood that the "total amount or difference of the tax or contribution" may not be confused with "the monthly payment amount", there not being, therefore, any personal or material identity between the fines.
This means for taxpayers that, in addition to the amounts related to taxes allegedly due and interest, the Tax Authority may issue a deficiency notice with the imposition of a fine of 75% on the total amount or difference of the tax to be collected (ex-officio fine) and a fine of 50% on the estimated monthly amounts that should have been advanced by the taxpayer (individual fine).
CSRF members mentioned, during the trial, that Precedent No. 105 can continue to be applied to the collection of taxes due prior to the entry into force of Law No. 11,488/2007. However, for those cases involving periods after 2007, CSRF′s new understanding must prevail.