A decision by the Federal Regional Court (TRF) of the 1st Region, located in the Federal District, prevents the Federal Revenue Service from disregarding \u2013 before the end of the appeal trial \u2013 a double request for compensation made by a company to correct its error in a declaration in the IRS's electronic system (Perd\/Comp). The court has also authorized requests made on paper, while the IRS requires the electronic means.<\/p>\n\n\n\n
The company requested recognition of the right to file two compensation requests relating to the same assessment period (quarter). The IRS's computerized system automatically understands that there must have been an error on the part of the taxpayer and the second declaration is canceled by the system.<\/p>\n\n\n\n
The company wanted to make new requests because it had collected fewer PIS and Cofins credits than it could offset and use to pay off other debts. But they were automatically denied by the system.<\/p>\n\n\n\n
Lawyer Maria Lucia de Moraes Luiz, tax coordinator at Tanganelli & Chaves Advogados, who worked on the case, stated that, because of the IRS system, a formal error ended up making the right to a refund unfeasible.<\/p>\n\n\n\n
\u201cWe asked the courts for the IRS to process these credits because the system did not allow it,\u201d she said. \u201cWe argued that formal errors by the IRS cannot hinder the right. The form cannot prevail over the content,\u201d she added. The IRS claimed that there was no \u201ccomplementary request for refund.\u201d<\/p>\n\n\n\n
The first instance court's decision denied the company's request for a writ of mandamus. The company appealed and requested a precautionary measure (a type of urgent measure) so that, while its appeal is pending judgment, the second request for compensation is not canceled. This second request was granted (case no. 10234233520224010000).<\/p>\n\n\n\n
According to the rapporteur at the TRF, the federal judge Rosimayre Gon\u00e7alves de Carvalho, a mere formal error, consisting of the incorrect completion of the reimbursement request made by the taxpayer through the PER\/DCOMP program, cannot lead to the denial of the right to the remaining credit.<\/p>\n\n\n\n
\u201cThe IRS must seek to expand the forms of access to the system, and is not authorized to restrict rights because it requires a certain form that, in this case, does not meet the needs of the requesting party,\u201d the judge stated in the decision.<\/p>\n\n\n\n
According to the rapporteur, there is a risk of serious harm that justifies the precautionary measure in view of the possible prescription\/expiry (loss of term) of the additional credits determined. She determined that the IRS should refrain from summarily canceling the requests for additional reimbursement and, in the event that such cancellation has already occurred, that it be reversed, maintaining its validity until the appeal is judged or re-analyzed by the administration.<\/p>\n\n\n\n
Paper orders<\/p>\n\n\n\n
The TRF already has case law contrary to the IRS requirement that all requests be made electronically. The IRS's position means that tax compensations made in physical form are considered \u201cundeclared\u201d.<\/p>\n\n\n\n
In a decision in June, the 8th Panel of the Court unanimously reinforced the understanding and denied the Union's request. According to the rapporteur, Nov\u00e9ly Vilanova da Silva Reis, the requirement made solely by means of an infra-legal rule (SRF Normative Instruction No. 460, of 2004) that the tax compensation procedure be carried out electronically is not compatible with the principle of the reserve of law.<\/p>\n\n\n\n