Lula gives endorsement and Fazenda articulates change in Carf’s MP to avoid defeat

Minister Fernando Haddad (Finance) received the green light from President Luiz Inácio Lula da Silva (PT) to articulate changes in the MP (provisional measure) published by the government a little over 15 days ago that changes rules of the CARF (Administration Council of Tax Resources) ).

The changes are negotiated in view of the realization within the PT itself that there is a risk of defeat in Congress if the Executive insists on the original proposal. Among the reasons is the fact that parliamentarians deliberated in favor of the rules in force until the beginning of the year in a law approved and sanctioned recently (in 2020) and, therefore, would have little willingness to endorse an amendment in the opposite direction.

The Carf is a Treasury body formed half and half by representatives of the Union and taxpayers, and judges (at the administrative level) the contestations of companies to tax collections by the Federal Revenue Service. The body currently accumulates a stock of BRL 1 trillion in processes to be decided.

Since 2020, Congress has passed into law the determination that judgments that end in a tie in CARF will be considered favorable to taxpayers. In other words, the hitherto existing “casting vote” (which decided for one side or the other in these cases) was extinguished.

The Ministry of Finance sees the change made in 2020 as excessively painful for public accounts and, in the midst of the need to seek fiscal adjustment measures in the face of the expansion of expenditures contracted for 2023, it resumed the casting vote through an MP —which it has the immediate force of law, but needs to be endorsed by Congress within four months (otherwise it expires).

Faced with the risk of defeat, Haddad should start articulating as of this Monday (6th) with Congress an easing of the MP. The minister discussed the issue on Thursday (2) with Lula at the Planalto Palace, in a meeting that was attended by the special secretary of the Federal Revenue, Robinson Barreirinhas, and received approval to forward an agreement with businessmen that changes the proposal.

There was another meeting with the group this Friday (3), and a negotiation in that sense should be closed on Monday. The proposal, led by businessman João Camargo, from the Esfera Brasil group, and by Abrasca (an association of publicly-held companies, which brings together giants such as Ambev and Americanas), provides that, in the event of a tie, the company can pay the debt without fines and interest. , only with monetary correction —the counterpart is that the process does not go to court.

The risk of a setback has paralyzed the CARF trials scheduled for next week. The agenda included tax cases involving companies such as Petrobras, BRF, Santander, Ford and Ambev. In addition to negotiating with the Treasury, large companies took the issue to Minister Dias Toffoli (STF), who gave the government three days to provide information about the MP.

The MP is part of the minister’s plan to improve public accounts this year. Haddad presented a package of measures that add up to R$ 242.7 billion in fiscal adjustment, but a large part will need congressional approval.

The measure aimed at Carf is based on three main initiatives: the return of the casting vote, spontaneous reporting —in which the company recognizes and pays the debt without penalties— and raising the threshold for the process to be judged by Carf (from 60 minimum wages to 1,000 minimum wages).

In the interview in which he announced the package, Haddad stated that the changes involving Carf could generate BRL 50 billion in revenues in 2023 — BRL 35 billion of which are extraordinary and BRL 15 billion with permanent effect. The Treasury still has no calculations on how much the flexibility negotiated with businessmen could affect the minister’s economic plan.

“The provisional measure has a misunderstanding from birth, which is a lack of conversation, of interlocution with the National Congress, mainly because the one who made the previous alteration was the Federal Chamber”, criticizes deputy Marco Bertaiolli (PSD-SP). Another point criticized by parliamentarians is the increase in the threshold for the process to be taken to CARF, a measure that would “elite” the body.

Leader of Citizenship in the Chamber, Deputy Alex Manente (SP) said that the party had prepared an amendment to remove the re-establishment of the casting vote from the text. “When you have a tie, the casting vote cannot benefit the State and push citizens to seek justice, which is what happens. In our assessment, there is no point in resuming the casting vote.”

Deputy Reginaldo Lopes (MG), who held the PT leadership in the Chamber until the end of January, defends the government’s MP. “The qualified vote in the pro-government Carf is super important because the treasury is affected by a possible tax evasion attempt by the taxpayer”, he says.

Amid resistance, the Revenue has argued that the non-application of the casting vote makes the ties favor few taxpayers, with billionaire values ​​in question.

“Of the BRL 24.8 billion resolved in favor of taxpayers, BRL 22.2 billion referred to only 26 companies. It is very important to clarify that the overthrow of the casting vote is in the interests of these companies, large debtors to the Tax Authorities, not the Brazilian population”, says the Tax Authorities.

In the legal world, opinions differ. For lawyer Gustavo Brigagão, partner of Brigagão, Duque Estrada, the MP has negative points in “distorting the nature of Carf” and transforming it “into a collection agency”. “The government runs a serious risk of seeing the measures it proposed being overturned by Congress”, he says.

Daniel Menezes, legal director of Anafe (National Association of Federal Public Lawyers), on the other hand, sees the MP as positive. “The counselor is not there to defend the position of the taxpayer or the Treasury. You presume that the Federal Revenue auditor acted in accordance with the law [e] if the taxpayer feels harmed, he can still argue in court”, he says.