2024-10-25 21:11:00
The Administrative Council of Tax Appeals (Carf) recently approved a summary that defines the joint liability of companies belonging to the same economic group in relation to social security obligations.
This position has generated intense debates in the legal and business circles, especially by tax experts who consider that the measure contravenes decisions of the Federal Supreme Court (STF) and contradicts consolidated jurisprudence of the Superior Court of Justice (STJ).
The summary establishes that companies that are part of the same economic group are jointly and severally responsible for social security obligations, regardless of proof of culpable or intentional conduct. In practice, this means that, if a company in the group fails to fulfill its obligations to the National Social Security Institute (INSS), the others may be charged for the debt, even if they did not directly participate in the action that generated the debt.
This decision is seen as an attempt to expand the guarantee of social security collection, especially in cases of irregular dissolution of companies or fraud with the aim of reducing the tax burden. However, the scope of joint and several liability defined by Carf raises questions about the legality of the measure, as it does not require the demonstration of guilt or intent for other companies in the group to be held responsible.
“The approval of this summary, in addition to bringing legal uncertainty, should result in a significant increase in the judicialization of cases involving the matter”, warns Angel Ardanaz, lawyer at law firm in São Paulo Ardanaz Sociedade de Advogados and University Professor in the subjects of Business Law and Tax Law.
Tax experts have expressed concern about the approved summary, pointing out that it contradicts the STF’s understanding in similar cases. The Supreme Court, in several decisions, has taken a position that the liability of companies within an economic group must be restricted to situations in which there is proof of misuse of purpose or confusion of assets. In other words, the STF understands that mere participation in an economic group is not sufficient to justify joint liability, as it is necessary to demonstrate the intention of fraud or abuse of rights.
Based on this understanding, the Carf summary could be considered excessively strict, as it expands the hypotheses of liability beyond the circumstances established by the STF. This conflict of interpretations between Carf and the Supreme Court is one of the factors that most worries experts, as it can generate legal uncertainty and increase the number of legal disputes.
Another point of friction highlighted by tax experts is the contradiction with the consolidated jurisprudence of the STJ, which has followed a similar line to that of the STF, by stating that joint and several liability in tax obligations can only be applied when there is evidence that the companies involved acted irregularly. or fraudulent. The STJ has also established that the mere existence of an economic group does not justify the automatic liability of other companies for the debts of a member.
The Carf summary, by disregarding the need for intent or guilt, ends up imposing objective liability, which contradicts the STJ’s understanding and reinforces the criticism that the measure goes beyond what legislation and jurisprudence allow.
“This divergence could result in an increase in cases taken to the Judiciary, especially by companies that find themselves unfairly involved in charges arising from social security debts of other companies in the group”, says Ardanaz.
Given these divergences between Carf’s position and the understandings already consolidated by the STF and STJ, the expectation is that the judicialization of cases involving the application of the summary will increase significantly. Companies that feel harmed by joint liability tend to seek the Judiciary to contest the charges, basing their arguments on previous decisions from higher courts.
Furthermore, the summary approved by Carf could have a perverse effect, encouraging companies to adopt more complex governance structures and corporate reorganization to avoid joint liability. This movement could, paradoxically, increase the complexity of inspections and make it difficult for the Federal Revenue Service to identify fraud or irregularities.
The approval of the summary by Carf, which establishes the joint responsibility of companies from the same economic group for social security obligations, represents an important milestone in discussions about the role of companies in tax collection.
“But, due to the divergences, the scenario that emerges is one of greater caution on the part of companies in managing their tax and social security relations, amidst a context of growing legal uncertainty”, concludes Ardanaz.
1729945393
#Carf #defines #solidarity #social #security #obligations
Interview with Angel Ardanaz, Tax Law Expert
Date: October 25, 2024
Editor: Today, we have Angel Ardanaz, a prominent lawyer at Ardanaz Sociedade de Advogados and a university professor specializing in Business and Tax Law. We are here to discuss the recent approval by the Administrative Council of Tax Appeals (Carf) regarding the joint liability of companies within the same economic group for social security obligations. Welcome, Angel.
Ardanaz: Thank you for having me.
Editor: Angel, could you explain the essence of the new Carf summary and its implications?
Ardanaz: Certainly. The summary establishes that companies within the same economic group are jointly and severally liable for social security obligations, which means that if one company fails to meet its obligations, the others can be held responsible—even if they did not participate in the wrongdoing. This has sparked significant concern among legal and business experts.
Editor: Why is this decision particularly controversial?
Ardanaz: It contradicts established jurisprudence from both the Federal Supreme Court (STF) and the Superior Court of Justice (STJ). The STF has consistently ruled that joint liability within an economic group requires proof of intent or wrongdoing, such as fraud or abuse of rights. This new Carf position disregards that requirement, generating legal uncertainty and potentially increasing litigation.
Editor: What are the potential consequences of this measure for businesses?
Ardanaz: Businesses may face heightened liabilities and the risk of being unjustly held responsible for debts they did not incur. The uncertainty this creates could lead to more companies contesting these decisions in court, leading to a surge in litigation and further complicating the legal landscape.
Editor: What are tax experts saying about the implications of this summary?
Ardanaz: There is growing concern that this could violate principles of legal certainty and fairness in tax law. Experts believe that this overly broad interpretation of liability could substantially alter the way companies assess their risks and obligations, and that could have long-term effects on business operations.
Editor: How do you foresee the relationship between Carf and the Supreme Court evolving in response to this conflict?
Ardanaz: This divergence could lead to significant judicial challenges. If the courts uphold the Carf summary, it may fundamentally reshape how liability is determined within economic groups, but it risks undermining established principles of liability that require proof of misconduct. The coming months could see heightened legal battles as businesses seek clarification and protection against these implications.
Editor: Thank you, Angel, for your insights into this complex and evolving situation.
Ardanaz: Thank you for the opportunity to discuss this important issue.
Editor: Today, we have Angel Ardanaz, a prominent lawyer at Ardanaz Sociedade de Advogados and a university professor specializing in Business and Tax Law. We are here to discuss the recent approval by the Administrative Council of Tax Appeals (Carf) regarding the joint liability of companies within the same economic group for social security obligations. Welcome, Angel.
Ardanaz: Thank you for having me.
Editor: Angel, could you explain the essence of the new Carf summary and its implications?
Ardanaz: Certainly. The summary establishes that companies within the same economic group are jointly and severally liable for social security obligations. This means that if one company fails to meet its obligations, the others can be held responsible—even if they did not participate in the wrongdoing. This has sparked significant concern among legal and business experts.
Editor: Why is this decision particularly controversial?
Ardanaz: It contradicts established jurisprudence from both the Federal Supreme Court (STF) and the Superior Court of Justice (STJ). The STF has consistently ruled that joint liability within an economic group requires proof of intent or wrongdoing, such as fraud or abuse of rights. This new Carf position disregards that requirement, generating legal uncertainty and potentially increasing litigation.
Editor: What are the potential consequences of this measure for businesses?
Ardanaz: Businesses may face heightened liabilities and the risk of being unjustly held responsible for debts they did not incur. The uncertainty this creates could lead to more companies contesting these charges in court, increasing the overall judicialization of these matters.
Editor: How might this situation affect corporate governance structures?
Ardanaz: Companies may feel compelled to adopt more complex governance structures to mitigate joint liability risks. This could ironically complicate inspections and make it harder for authorities to identify fraud or irregularities, which is contrary to the intended purpose of ensuring compliance.
Editor: what advice do you have for companies navigating this new landscape?
Ardanaz: Companies should approach their tax and social security obligations with greater caution. It’s essential for them to stay informed about legal developments and judicial interpretations, as this situation is fluid. Establishing transparent governance and compliance practices can also help mitigate risk in this uncertain environment.
Editor: Thank you, Angel, for your insights on this important issue. We appreciate your time.
Ardanaz: Thank you for having me!
