The 3rd Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) denied this week the right to compensation in cases where there is a final court decision recognizing the change in ownership of the credit. The score was five to three in favor of the National Treasury.<\/p>\n\n\n\n
The dissenting thesis, by counselor Luiz Eduardo de Oliveira Santos, prevailed, considering that the situation would be equivalent to the use of third-party credit, which is prohibited by law. The vote of the rapporteur, counselor Erika Camargos Autran, was in favor of the taxpayer.<\/p>\n\n\n\n
The case reached Carf after the DRJ did not approve a request for compensation made based on a ruling by the 4th Federal Court of the Judicial Section of Esp\u00edrito Santo. The ruling allowed Rio de Janeiro Refrescos Ltda. to replace Bozzo Brasil Com\u00e9rcio, Importa\u00e7\u00e3o e Exporta\u00e7\u00e3o Ltda. as the active party in the action that requested the refund of credits for the payment of the coffee quota.<\/p>\n\n\n\n
The so-called \u201ccoffee quota\u201d is a tax considered unconstitutional that financed the exemption of export tax on coffee sales in the 1980s. Due to an agreement between the companies, Bozzo transferred the credits relating to the undue payment of the coffee quota to Rio de Janeiro Refrescos through a public instrument of assignment.<\/p>\n\n\n\n
However, after analyzing the documents, the DRJ did not approve the offset, claiming that it was a third-party credit. The lower court granted the taxpayer's appeal, ordering the return to the DRJ to determine the credits. The Treasury appealed.<\/p>\n\n\n\n
Third party credit<\/p>\n\n\n\n
In the 3rd Panel of the Superior Court, lawyer Fernando Munhoz, from Machado Meyer Advogados, argued that this was not a classic situation of assigned credits. \u201cThere is a court decision that approved [the substitution in the passive pole] for the purpose of authorizing the compensation by the defendant,\u201d he stated during oral argument.<\/p>\n\n\n\n
The rapporteur adopted the reasons for the decision of the lower panel, understanding that res judicata can never be changed in the administrative process. \u201cThe origin of the credit cannot be confused with the ownership. Even if it originates from someone else's assets, there is nothing to prevent it from being negotiated, becoming part of the acquirer's assets\u201d, she declared.<\/p>\n\n\n\n
For counselor Luiz Eduardo de Oliveira Santos, however, there is no determination in the court ruling that the public administration recognize the right to credit.<\/p>\n\n\n\n
\u201cI understand that there is no determination in the court decision for administrative compensation. I understand that this legal prohibition on the use of third-party credit can be interpreted as credit originating from third parties. Otherwise, any assignment would transform the credit into one\u2019s own credit and this would invalidate the legislation,\u201d he stated.<\/p>\n\n\n\n
The process is number 10707.000478\/2007-11.<\/p>\n\n\n\n