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for the reduction of the Import Tax on vehicles intended for the transport of people with disabilities and the nature of the hold back (bonus paid to dealerships) are among the topics discussed at the Administrative Council of Tax Appeals (Carf) involving the automotive sector. In both discussions, the taxpayer has been losing in the administrative court.

 

Other topics that, although not exclusive, have automotive companies as parties with a certain frequency are the suspension of the IPI on the exit of establishments equivalent to industrial, transfer pricing and tax planning. This is because the discussions involve legal entities with common characteristics in the sector, which includes multinationals, importers and members of economic groups. In these matters, taxpayers have had recent victories due to the pro-taxpayer tie-breaker rule.

 

It is also worth noting that the scenario regarding the themes may change due to recent changes in the composition of the classes of the Superior Chamber of Carf. In the 3rd Chamber of the Superior Chamber, which judges cases on IPI, PIS, Cofins and Import Tax, counselors Rodrigo Pôssas and Luiz Eduardo de Oliveira Santos, tax representatives, were removed from their positions. Pôssas was replaced by counselor Liziane Angelotti Meira, also named president of the 3rd Section of Carf. Santos' replacement should be Rosaldo Trevisan.

 

 

For Cassio Sztokfisz, a partner at Schneider Pugliese, the changes may affect, for example, the collegiate's position in the analysis of the nature of hold back. “The tax authorities understand that [the hold back] is a subsidy that the automaker gives to the dealership and, as a subsidy for funding, it would enter the company's gross revenue. But Luiz Eduardo and Pôssas left, who were votes in favor of the Treasury. It is not possible to know, but we may have some changes”.

 

In the 1st Chamber of the Superior Chamber, which analyzes cases involving IRPJ and CSLL, and generally judges cases on transfer pricing, former director Caio Quintella was replaced in March by Gustavo Fonseca. In addition, the decision of the president of CARF, Carlos Henrique de Oliveira, to participate as a judge in the sessions of the Superior Chamber, led to changes in the position of the 1st Panel in the July session, with the collegiate forming a majority against the thesis of the tax authorities in cases previously decided by the pro-tax tiebreaker.

 

Oliveira also delivered a rare casting vote (double vote of the president) in favor of the taxpayer. Despite the institution of the tiebreaker for taxpayers, the Ministry of Economy understands that the casting vote is applicable to situations that do not involve a tax assessment.

 

Conditions for tax benefit

Discussions at Carf about the conditions for legal entities to be entitled to the reduction of the Import Tax on vehicles for the transport of people with disabilities revolve around the condition placed by law 10.182/2001, that companies prove the payment of federal taxes and contributions to enjoy the tax benefit. The lawsuits discuss when the taxpayer must prove the required discharge.

 

The understanding of the Superior Chamber is that the company benefiting from the automotive regime would have the duty to prove the discharge at any time, including during customs clearance, and not only when the right to participate in the program is granted. In 2018, 28 cases on the subject were judged in the 3rd Panel of the Superior Chamber of Carf. In all, the decision was favorable to the tax authorities. There are no judgments for 2019 and 2020. In 2021, judgments of the six cases judged in the Superior Chamber are unfavorable to the taxpayer. The judgments are 9303-011,199, 9303-011,599, 9303-011,203, 9303-011,204, 9303-011,201 and 9303-011,200.

 

hold back

In the case of hold back, discussion is infrequent on Carf. The search in the court system returned only 12 judgments in the period from 2010 to 2021, and the issue reached the Superior Chamber only once, in 2019. Most decisions are unfavorable to the taxpayer.