Beverage producer Ambev obtained a partial victory in a R$2 billion lawsuit in the 1st Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf), on Tuesday (12\/7).<\/p>\n\n\n\n
The panel upheld the tax charge related to the undue amortization of expenses with premium from the CSLL base. The score was 5 to 3 to deny the taxpayer's appeal.<\/p>\n\n\n\n
On the other hand, the counselors were unanimous in not acknowledging the appeal of the National Treasury to discuss the qualification of the fine, maintaining, in practice, the decision of the lower panel that reduced the penalty from 150% to 75% of the value of the tax credit, as they understood that no fraud or intent was proven.<\/p>\n\n\n\n
In addition to the reduction of the fine, the application of the statute of limitations rule of article 150 of the National Tax Code (CTN) was maintained, with amounts related to events generated on 12\/31\/2007 being excluded from the assessment. The charge covered the period from 2007 to 2012.<\/p>\n\n\n\n
The decision regarding CSLL represented a change in the panel's case law, which, in September 2021, dismissed a fine for the same reason applied to Unilever Brasil Ltda., in process 16561.720028\/2014-5. The decisive vote for the change in understanding was that of councilor Gustavo Fonseca, who in March replaced former councilor Caio Quintella.<\/p>\n\n\n\n
Quintella was the rapporteur of the Unilever case and his vote to allow the deduction of the premium from the CSLL base was supported by three councilors. With the score at 4 to 4, the pro-taxpayer tiebreaker rule was then applied.<\/p>\n\n\n\n
In the Ambev case, both the representative of the PGFN, Rodrigo Moreira Lopes, and the taxpayer's lawyer, Roberto Quiroga, argued in oral arguments that the other party's appeal should not be accepted. However, although the panel did not accept the Treasury's appeal or the taxpayer's request to discuss the business purpose of creating two holding companies, it decided to analyze the merits of the deduction of the premium from the CSLL base.<\/p>\n\n\n\n
The rapporteur, counselor L\u00edvia de Carli Germano, granted the taxpayer's appeal in the known part. The judge stated that there is no provision in section III of article 13 of law 9.249\/1995, which lists which expenses can be deducted from the CSLL base, for the deduction of expenses with goodwill amortization. However, the counselor understood that the tax authorities erred in applying to the contribution the criteria for deductibility of goodwill related to IRPJ, provided for in Law 9.532\/1997. The judge added that goodwill already functions as a reducing accounting portion in obtaining the CSLL calculation base.<\/p>\n\n\n\n
Counselor Edeli Bessa dissented. The judge noted that she did not see the need for a specific rule prohibiting the deduction of goodwill in the case of CSLL. For the judge, the fact that there is no legal provision allowing the deduction is enough to maintain the requirement of the tax. She also noted that, with regard to goodwill values, the tax authorities usually treat the contribution in a reflexive manner in relation to the IRPJ.<\/p>\n\n\n\n
The position was supported by the majority of the counselors, including Gustavo Fonseca, who mentioned having participated in several trials on the subject in the ordinary groups and having a similar understanding to that of Edeli Bessa.<\/p>\n\n\n\n