DIA 06/12/2024. Sessão Ordinária da II CJUL.

Summary

The transcript captures a tax-related council meeting, where members deliberate on a case involving ICMS credit adjustments. The subject of the case is a company accused of omitting ICMS payments due to improper credit adjustments. Legal representatives present conflicting views on the correct method of calculating the credit adjustment. The council unanimously agrees to move the process forward, seeking further investigation into the tax audit reports. A later hearing is scheduled, highlighting the complexity of industrial vs. commercial credit calculations under Brazilian tax law.

Takeaways

• 😀 The session begins on time with greetings to the participants, including council members and legal representatives.
• 😀 A tax case involving ICMS (VAT) credits is introduced, where the passive subject (the taxpayer) challenges the audit's findings on the grounds of unclear credit calculations.
• 😀 The council considers a proposal for further investigation (diligence) to clarify disputed aspects of the audit, specifically the methodology used for credit reversal and the origin of the operations in question.
• 😀 There are disagreements between the defense and the fiscal authority regarding the correct methodology for calculating the credit reversal (estorno). The defense suggests using the average tax rate from article 59, while the fiscal authority disagrees, citing differences between commercial and industrial operations.
• 😀 The defense argues that the credit reversal applied in the audit is overly disadvantageous to the taxpayer and does not comply with legal guidelines, specifically referencing the use of article 59 of the RCT (Regulation of ICMS Tax).
• 😀 The fiscal authority clarifies that article 59 cannot be applied because the case involves an industrial operation, where the product entering the facility is not the same as the product leaving, making it impossible to apply the FIFO (First In, First Out) method used in commercial operations.
• 😀 Both the defense and the fiscal authority agree on the necessity of further investigation to provide clarity and allow the taxpayer to fully understand the basis of the audit's findings.
• 😀 The proposal to request additional reports and explanatory notes is accepted, which would clarify the disputed points in the audit, including detailed breakdowns of the origin of the credit values.
• 😀 A final resolution is deferred until the next session, where the additional information will be reviewed and discussed. A vote is taken to approve the diligence proposal.
• 😀 The session concludes with an adjournment of the case, with the council scheduling a follow-up session for January 29, 2025, to review the case after the requested information is gathered.

Q & A

What is the main issue discussed in this meeting?

The main issue revolves around the return of a process regarding a tax dispute related to the ICMS (a tax on goods and services) between a company (recorrente) and the state tax authorities. Specifically, the case concerns the correct calculation and estorno (adjustment) of tax credits related to sales and purchases, where the company claims that the audit methodology used was incorrect.

What are the allegations made by the subject of the tax dispute (the taxpayer)?

The taxpayer argues that the tax audit was flawed due to a lack of clarity in determining the origin of operations and how the percentage of estorno (tax credit reversal) was calculated. The taxpayer claims that the audit methodology did not comply with legal standards and requests further clarification on these issues.

What does the relator propose regarding the issue raised by the defense?

The relator, Conselheira Nislene, proposes a diligent investigation, recommending that additional reports and explanatory notes related to the tax audit be provided. These documents would clarify the disputed points and ensure that the defense's concerns are fully addressed.

How does Dra. Marília contribute to the discussion?

Dra. Marília, representing the taxpayer, agrees with the proposed diligence but adds that the estorno index used in the audit is incorrect. She requests that the estorno calculation methodology be reviewed and, if necessary, adjusted using an alternative method described in Article 59 of the RCT (Regulation Code of Taxation).

What is Dr. Evandro's position on the proposed diligence?

Dr. Evandro, representing the tax authority, agrees with the proposed diligence and stresses the importance of providing full access to all reports involved in the audit, even if the defense did not explicitly request some of the details. However, he clarifies that the methodology used for calculating the estorno is correct, especially because the process concerns an industrial operation, not a commercial one.

Why does Dr. Evandro argue that the estorno calculation cannot be done using Article 59 of the RCT?

Dr. Evandro argues that Article 59 of the RCT, which is used for commercial establishments where the same product enters and exits, cannot be applied to an industrial establishment. In industrial operations, the goods undergo transformation, making it impossible to directly match the input and output goods. Therefore, the tax authority used the proportional calculation method outlined in Article 60 of the RCT.

What is Dra. Marília's counterargument regarding the application of Article 59?

Dra. Marília acknowledges the distinction but argues that even in cases where it is impossible to match specific goods, it is still possible to apply a calculation method based on Article 59. She references the official 2020 guidance (Parecer 15/2020) that allows for the application of an alternative estorno index, which considers the total sum of credits for the goods' entries, even in industrial processes.

What is the final outcome of the discussion regarding the proposed diligence?

The proposal for further investigation and the provision of additional reports was accepted. The tax authority will provide the necessary documentation, and the case will return for further review at a later session. Additionally, the defense's concerns about the methodology will be considered, and the fiscal authorities will respond to them.

What happens in the second part of the session, after the discussion on the tax dispute?

In the second part of the session, a new case is introduced, but the conselheira Nislene requests 'vista' (a period for further review) on the case. The date for the next discussion is set for January 29, 2025, and the session ends with the announcement of a complementary session to take place soon after.

How does the session conclude?

The session concludes with the formal closure of the regular session and the announcement of a subsequent complementary session. The case is placed on hold for further review, and the date for returning the case is set for January 29, 2025.