The State Treasury Office of the State of São Paulo published, on July 31, SRE Ordinance 51/23, which repeals CAT Ordinance 115/14, which may represent a setback in relation to the measures already in place for the exemption from the issuing of Tax Infraction Notices.
In the name of efficiency and reasonableness, CAT Ordinance 115/14 established the possibility that no Tax Infraction Notices would be issued, upon the acknowledgement of proof of the cumulative presence of certain requirements by a Quality Control Commission. By means of its Annex, CAT Ordinance 115/14 determined the hypothesis on which – due to its lesser offensive potential – no Tax Infraction Notices would be issued.
SRE Ordinance 51/2023 changes this situation.
The analysis of the fulfillment of the requirements for the exemption of Tax Infraction Notices is no longer the competence of the Quality Control Commissions– which are, essentially, extinguished. Although it is not explicit, in the new standard, it seems to us that this competence for analysis is now attributed to the fiscal agent responsible for the audit proceedings.
In reality, this means that there is no longer a document that formalizes this analysis, since the exemption from Tax Infraction Notices is a faculty guaranteed to the tax agent within the scope of the audit proceeding itself – and there is no provision demanding that the analysis of the exemption requirements is recorded in the Tax Infraction Notice itself.
Considering the optional nature of the exemption, it is possible that, with the end of the Quality Control Commissions, tax agents would opt not to check for these requirements and the exemption would always be waived by them.
Before, although often the access to the manifestation of the Quality Control Commission was not granted to the taxpayer, the examination on the possibility of applying the exemption had, as a rule, a mandatory character. Moreover, there was a record of this analysis within the State Treasury Office of the State of São Paulo.
The new standard also changes the very requirements for waiving of Tax Infraction Notices, making them more restrictive.
Under the terms of item IV of Section 10 of CAT Ordinance 115/14, once the other requirements are met, only recidivism by the taxpayer would exclude the possibility of exemption from the notice of infringement, that is, the practice of the same infraction in the last five years. According to SRE Ordinance 51/23, the exemption is prohibited in the case of assessment for any of the infractions conveyed in Sectione 85 of Law 6,374/89 in the last three years.
There is also no provision allowing for the notification of taxpayer so that, in ten days, he regularizes his situation before the state of São Paulo or presents a guarantee, in case of open debts.
Another relevant point of SRE Ordinance 51/23 is the absence of hypotheses in which the Tax Infraction Notice "will cease" to be issued, as there was in the Annex and article 10, paragraph 3, of CAT Ordinance 115/14. This means that these conducts, despite their lower offensive potential acknowledged by the State Treasury Office, could once more be written up as punishable infractions, subjected to penalties by São Paulo tax agents.
In general, the changes promoted by SRE Ordinance 51/23 can be understood as a setback in relation to the more conciliatory legislation hitherto in force and a return to a more antagonistic position between the State and the taxpayer, in opposition to the spirit of the repealed CAT Ordinance 115/14.