The judging panels of the Administrative Council of Tax Appeals (CARF) have an even number of judges, so that taxpayers and tax authorities have equal representation. Nevertheless, it is clarified that, according to the internal regulations, the vote of the representatives of the Taxpayers and the Treasury is free, and it is not stated that they will always vote in favor of their represented parties, but rather that a technical and impartial analysis of each demand is performed.
The CARF has jurisdiction to judge first instance administrative appeals and special appeals on the application of legislation relating to taxes administered by the Brazilian Federal Revenue Office (article 48 of law 11941/09).
In the event of a tie, the tie-breaking vote was always carried out by the casting vote, which was a kind of vote of the president of the Council's panels or chambers, a position always held by representatives of the Internal Revenue Service.
Federal Law No. 13988/20, published on 14 April, provides among its provisions guidelines for tax transactions and offers the possibility of renegotiating tax debts with the Federal Government.
As is well-known, several controversies have arisen over the change, since Law 13988/20, by rewording article 19-E of Law 10522/2002, now provides that a tie-breaking opinion in favor of the tax authorities by the president of the judgment panel is no longer allowed in "the trial of the administrative proceeding for determination and collection of the tax credit," so that the controversy must be resolved in a manner favorable to the taxpayer.
It should be pointed out that the casting vote is still being applied administratively. It is reported that, despite the end of the casting vote, it was used by the president of a panel of the Administrative Tax Appeals Council (CARF) to settle a dispute over the admissibility of an appeal filed by the National Treasury (Case 10314.003000/2002-51).
According to the president, in a restrictive understanding of the legislative change, the veto to the casting vote would not apply to discussion of admissibility of appeals, but only to the trial of merit.
Three ADIs (6399, 6403 and 6415) were filed pointing out formal and material unconstitutionalities in the legal provision.
In ADI No. 6399, it is argued that there was a defect in the legislative process due to the insertion of a matter of reserved initiative and without thematic pertinence with the original text by means of a parliamentary amendment.
For the Attorney General of the Republic, (ADI No. 6403) the legislative amendment presented a flaw in the legislative process because of the insertion of a matter of reserved initiative and without thematic pertinence with the original text through a parliamentary amendment.
In his reasons, he claims that the Federal Constitution reserved to the President of the Republic the discipline of the organization and functioning of the organs of public administration.
In ADI No. 6415, filed by the National Association of Tax Auditors of the Federal Revenue of Brazil (ANFIP), it is pointed out the violation of the democratic principle and the due process of law, because the amendment has been inserted by parliamentary amendment submitted after the issuance of opinion by the Joint Commission, it is also alleged that the amendment diverges from the provisional measure that gave rise to it.
In the MP's explanatory statement, the following excerpt is noted:
"The purpose of this proposal is to attack the bottleneck of the tax litigation process, whose stock, only in the Administrative Council of Tax Appeals (CARF), totals more than R$ 600 billion, distributed in about 120,000 proceedings.
The i. Professor Betina Treiger Grupenmacher argues that:
"With the extinction of the casting vote, if there is doubt as to the legality of the assessment, due to more than one possible interpretation on the application of the law to the concrete case, the uncertainty is to be resolved in favor of the taxpayer, by imposition of the principle of morality. As the administrative proceeding is a reevaluation performed by the Executive Branch on its own acts, the latter will only be authorized to collect taxes whose legal-tax fact is unequivocal, under penalty of collecting a tax with confiscation effect, which is strictly prohibited under the Constitution.
Finally, the casting vote is distinct from the casting vote and also from the double weight of the presiding officer's vote. It is certain that the federal administrative proceeding demands a deep restructuring, within the scope of which the introduction of the casting vote attributed to an impartial judge, who does not take part in the trial, would be desirable."
Therefore, until the definitive decision of the ADIs reported by Justice Marco Aurélio, the casting vote on tax thesis judgments is extinct in the CARF.
Postgraduate student in Tax Law, Faculty CEDIN