2023-09-12 04:07:16
Otto von Bismarck is credited with saying “It is better if people don’t know how laws and sausages are made”. In Brazil, the complement would be valid: laws, sausages and public accounts.
Having banned the discussion about reducing the size of the State and public expenses, the Lula Government reveals an obsession with increasing taxes, aiming, of course, to make fiscal adjustments only on the revenue side. The problem is that there is a glaring error in the accounts presented.
In the Union budget for 2024 delivered to Congress, the Government estimates that it will eliminate the fiscal deficit with additional revenue of R$168 billion from legislative proposals always aimed at increasing the tax burden. A large part of this – R$ 98 billion – would result from the modification of the casting vote in CARF, the last instance of administrative judgments of a federal tax nature (in January, the number given by the Government was R$ 50 billion. How was it possible to double it is unknown).
The proposal ends the current system, in force since mid-2020, whereby a tie in the vote on the administrative judgment cancels the charge in favor of the taxpayer. With the recreation of the quality vote, the model in force until 2020 will be resumed, according to which, in the event of a tie, a representative of the Federal Revenue Service has, in practice, his vote counted twice.
However, believing that the mere recreation of the quality vote will deliver the desired revenue is touchingly naive. Now, the end of the administrative discussion does not imply payment of the tax, because the taxpayer will be able to challenge the charge in court.
That’s exactly what has always happened in the past. The dubious nature of the charge under discussion, materialized by the tie in the vote itself, only reinforced the intention of seeking the cancellation of the charge in the Judiciary, which, not infrequently, enforces the so-called constitutional limitations on the power to tax.
Taxpayers are used to taking legal action to avoid undue charges validated by CARF. There are many examples where this was done successfully, such as in the discussion involving the amortization of goodwill, the deductibility of JCP relating to previous periods, the exclusion of ICMS from the PIS and COFINS calculation basis, the taxation of installments paid as PLR, the concept of input for PIS and COFINS, the prevalence of treaties in the taxation of profits earned abroad, etc.
Therefore, there is no reason to believe that, defeated due to the new tiebreaker system, taxpayers will have to hang their heads. It is true that there would be an incentive to pay, embodied in the possibility of doing so within 12 months, without fines and interest. While it is reasonable to expect the measure to contribute in some way to revenue, it is highly unlikely that it will attract so many resources to public coffers.
To give you an idea of the fragility of the accounts presented by the Government, the Zero Litigation Program, which also removed fines and interest for cases being processed at CARF, generated, from February to July this year, a collection of R$3.6 billion. How can we imagine that this will rise to almost R$100 billion?
Even if CARF abandons its mission of ensuring impartiality in the resolution of tax disputes to become a machine for grinding taxpayers, it is clear that the victims will seek help from the Judiciary – as they have always done.
Recently, the executive secretary of the Ministry of Finance stated that “skepticism will once again be overcome”, because “the technical team’s conviction is solid”. But zero deficit will not be ensured by a simple phrase.
In Dom Casmurro, Bentinho, who was not very good at it, talks about Escobar, his friend who is very well versed in mathematics: “Growing up on my parents’ spelling, it was difficult for me to hear such blasphemies, but I didn’t dare refute him. However, I said some words of defense, to which he replied that arithmetical ideas could go on to infinity, with the advantage that they were easier to manipulate.”
Luiz Gustavo Bichara is a partner at Bichara Advogados.
Luiz Gustavo Bichara
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