The 3rd Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) declared the annulment of an infraction notice against Petro Rio Jaguar Petróleo SA, understanding that the tax authorities did not follow the proper procedure to question the customs regime already granted to the company. The case involves approximately R$ 18 billion in updated values and deals with alleged irregularities related to Repetro-Sped.
The majority of the panel followed the vote of the rapporteur, council member Tatiana Belisário. According to her, the tax authorities presented arguments related to the requirements for granting the regime, but formalized the charge as resulting from non-compliance with the conditions of use.
Belisário argued that if the intention was to revoke the Repetro-Sped concession, it would be necessary to follow the procedure for reviewing or revoking the concession act, and not simply issue a notice to collect the suspended taxes.
The rapporteur also pointed out that the lack of clarity compromised the taxpayer's right to defense, since it was not possible to accurately identify whether the tax authorities intended to review the granting of the regime or investigate irregularities in its use. The vote reinstates, on this point, the conclusion of the Tax Appeals Board (DRJ) that the assessment was null and void, based on article 59, item II, of Decree 70.235/1972.
The company's defense argued that the tax authorities initiated the procedure and directly issued the infraction notice, without prior notification to correct or clarify alleged errors or to present the administrative appeal provided for in the regulations of the regime at the time of the events.
“The Superior Chamber recognized that demanding R$ 17 billion without even clarifying what was intended (reviewing the concession or investigating non-compliance) restricts the taxpayer's defense and renders the assessment null and void. The PetroRio case, therefore, besides being a legal absurdity, is emblematic, as it embodies the CARF's commitment to the integrity of the Federal Revenue's rules and procedures,” stated lawyer Eduardo Kiralyhegy, from NMK Advogados, to JOTA.
The expert on the case, tax lawyer Leonardo Branco, from Daniel, Diniz e Branco – Advocacia Tributária e Aduaneira, classified the process as "quite peculiar" and highlighted that the tax authorities, when re-analyzing the Repetro requirements during the migration to Repetro-Sped, should have followed the review procedure foreseen in the legislation to cancel or disregard the special regime. Branco also stated that, a few weeks after the assessment was issued, the responsible auditor left the Federal Revenue Service.
In the hearing, the Treasury, represented by attorney Fabrício Sarmanho de Albuquerque, expressed dissatisfaction with the fact that the discussion regarding the nature of the defect had not been fully addressed, due to the lack of an "ancillary appeal" in the administrative process. Belisário agreed with the criticism and pointed out the need for adjustments to the regulations.
Council member Vinícius Guimarães was outvoted, having voted to deny the company's appeal on its merits. Previously, Guimarães had voted against considering the appeal.
The ongoing process is number 10730.726286/2022-80.
Source: JOTA