The Federal Regional Court of the 4th Region (TRF4) suspended, in the last week (July 26), an injunction that had determined to the delegate of the Federal Revenue of Brazil of Santa Cruz do Sul (RS) to refrain from preventing until 12 / 2018 the compensation of the competences referring to the monthly estimates of IRPJ / CSLL of the calendar year of 2018 of the Tobas Marascas company.
Compensation is one way to pay tax debts. It occurs when the taxpayer has a credit with the National Treasury that can be refunded or reimbursed and uses it to offset own, past or future debts.
The Federal Government appealed to the court, claiming that there is no net and certain right to compensation, even if the taxpayer opted for the monthly estimate before the effects of Law 13.670 / 2018 were produced.
The National Treasury also argued that this law does not prejudice credits, including those already in existence, which may be subject to a request for restitution and also to offset with other Brazilian Federal Revenue taxes, and only compensation with the debts related to the monthly calculation by estimation of IRPJ and CSLL.
According to the decision, the report of the federal judge Alexandre Rossato da Silva Avila, summoned to act in court, is not a restriction on the right of the taxpayer to use the credit balance resulting from the larger estimates, as provided in art. 6, paragraph 1, II, of Law 9.430 / 96, but instead of prohibiting the offsetting of taxpayer credits with the debts referring to the monthly collections of IRPJ and CSLL estimates. The magistrate pointed out that the Federal Supreme Court (STF) has established jurisprudence that there is no acquired right to a certain legal regime. "The Court, in examining the limits to tax compensation provided for in Laws 9.032 / 95 and 9.129 / 95, decided that, even if the claims originated before the laws were in force, they would be subject to limitations," said Ávila.
The rapporteur noted that "legal certainty, in turn, can not be invoked for the purpose of giving the taxpayer the acquired right to a tax regime, and the legislative amendment does not affect the option to pay the IRPJ / CSL with monthly estimates and neither the right of credit, which is still guaranteed by law.