Panel SA: Revenue needs to understand that taxpayers do not smell of sulfur, says tax expert

While the government and a group of large companies are forwarding an agreement to overturn fines and interest in cases of a tie at Carf (Administrative Council of Tax Appeals), there are still other ways that could help with the collection, according to Luiz Gustavo Bichara, founder of Bichara Advogados and special tax attorney for the OAB. The solution involves tax citizenship and respect for those who pay bills.

“The Revenue needs to overcome this guerrilla logic, and understand at once that the taxpayer does not have horns or tails, nor does he smell of sulfur. It is not possible for the taxpayer, in the Revenue’s view, to always be an enemy, a stubborn tax evader”, it says.

Bichara, who participated in the preparation of the ADI (Direct Action of Unconstitutionality) taken by the OAB to the STF against the return of the casting vote in Carf, believes that the measure can still prosper.

Mr. Do you still think ADI is a possible way out of the impasse? I strongly believe in the possibility of origin of the ADI. In my opinion, the STF has an appointment with this issue of the casting vote. There are a series of constitutional principles that make us believe in the success of the action.

Mr. Have you been following the dialogue of a group of large companies to bring Haddad a proposal to amend the provisional measure that deals with the issue? Is the proposal to take a fine and interest a good solution?I’ve been following it, and I think it might be a good solution. For taxpayers, it would be preferable to maintain the rule approved in 2020 and enshrined in more than one law by Congress. But the agreement would not be bad, especially for the exoneration of the absurd fines charged by the Revenue in the assessments. In addition, for the future, it is fundamental that we can discuss a gradation of sanctions, the so-called sanction moderation.

In the committee of jurists appointed by the STF and the Senate, which I had the honor of being a member of, this topic was very well addressed, with the establishment of objective and concrete parameters for setting fines. It is absurd that any disagreement between the tax authorities and the taxpayer is accompanied by a 75% fine. This makes dispute resolution alternatives too unfeasible.

Other members of the OAB were at the meeting on Friday with Haddad to deal with the agreement. Does this conversation have a chance of success?I believe so, although naturally everything will flow into Parliament. And we need to remember that the Chamber recently edited Complementary Bill 17, from the rapporteur of Deputy Pedro Paulo, where the pro-taxpayer quality vote system was not only confirmed but expanded, for all administrative courts in the country. The in dubio pro reo is an ancient principle of law, even an elementary notion.

When negotiating the proposal, the companies took projected revenues of more than R$ 100 billion, therefore, above the minister’s initial forecast. Is it even possible to achieve this?Much due to the stoppage of Carf, practically, in the last two years, there is a great lack of numbers, making difficult the task of making serious estimates about the result of the measure in terms of collection.

Even if this chance comes to overturn fines and interest, should many companies continue to sue?I think so. Whenever the taxpayer is convinced about his chances of success, he will prefer to continue litigating. Many of the theses under discussion in administrative litigation have already had judicial decisions favorable to taxpayers. The existence of these judicial precedents will naturally discourage an agreement.

Revenue auditors criticize this possible agreement. Tax experts don’t like the idea either?The Revenue needs to overcome this guerrilla logic, and understand at once that the taxpayer does not have horns or tails, nor does he smell of sulfur. It is not possible for a taxpayer, in the eyes of the Revenue, to always be an enemy, a stubborn tax evader. We have to think in terms of tax citizenship, and respect those who pay the bill, under penalty of killing the goose that lays the golden eggs.

Of course, tax evaders must be fought, not least because they distort the market and harm good taxpayers. But you have to separate the wheat from the chaff. I think that the minister missed a great opportunity, in the package presented in January, to improve the tax transaction instrument. The way out to reduce the gigantic tax litigation is there.

It is possible for us to move towards building consensus. The package proposed a transaction that could even be interesting, as it allows the partial use of tax losses. But why limit it to administrative litigation? It would be important to expand and simplify the instrument, providing access to all taxpayers. Today there are dozens of different transaction types.

It would be important to uncomplicate the system and think of a more ambitious transaction, which really had the power to drastically reduce conflicts between tax authorities and taxpayers.

Are there other ways?Another thing we should think about is the active debt collection solution. Today, the active federal debt, that is, taxes charged and not paid by taxpayers and whose collection has already ended up in court, exceeds R$ 2.7 trillion. The recoverability index is just over 1%. Why not think of alternatives? The entities could sell their credits, as any creditor of the so-called bad credits does. Certainly, the collection would be higher.

X-ray

Founding partner of Bichara Advogados, he is a special tax attorney for the federal council of the OAB and a member of the committee of jurists established by the Senate to reform the legislation on administrative and tax proceedings and of the technical support committee for carrying out a diagnosis of tax litigation at the National Council of Justice.