The Federal Supreme Court - STF recently ruled on the validity of tax penalties whose value appears to be excessive. These decisions (AgReg the 833,106 RE / GO, AgReg the AI No. 727872 / RS) ministers that make up the 1st Panel expressly manifested themselves about the effects of confiscatory tax penalties.
The Federal Constitution of 1988 prohibits tributantes loved require taxes that produce "confiscatory effects." Longer remains pacified the understanding that this prohibition applies also to tax penalties. The most delicate legal issue is whether the threshold from which the confiscatory fine would be characterized. It would be possible, for example, always set in advance (a priori) a value which is considered confiscatory? Or is that only you can set case by case (a posteriori) the confiscatory nature of certain tax or fine (given the circumstances of each)?
In this context, the Supreme Court debate the issue for years. Until then, many decisions failed to consider the argument of taxpayers alleging that involve factual matter, which would prevent the Court to be revealed. However, two recent decisions exceeded this "barrier" and set very clear parameters as to confiscatory effects involving tax penalties, leaving record that is the Supreme Court's function is to analyze and determine whether certain tax requirement has or not confiscatory effects, failing to empty it jurisdiction of the Court.
In one case, the Supreme Court held that a punitive fine of 120% of ICMS unpaid, proves unconstitutional. Remained seated that the fine can not be higher than the required value tribute and it was decided to reduce the fine of 120% to 100%.
In another trial, the Justices of the Supreme Court understood that the fines (the one imposed on the taxpayer collects unpunctual way the tax) can not exceed 20% (twenty percent). At his trial clearly established the distinction between the kinds of delinquent fines and punitive fines, as well as the levels from which setting would be the confiscatory effect. In this case, the fine was reduced moratorium from 30% to 20%, in response to that principle of non-forfeiture.
The theme will certainly have consequences and will be fully discussed. However, taxpayers already have absolutely objective and clear understanding of the Ministers who are members of the 1st STF. It is fair to say that this understanding should prevail, as it portrays a closer reality of the current economic situation and monitors the evolution of the jurisprudence of the Supreme Court.
Given this context, it is for legislators conform its legislation to the Supreme Court reference. On the other hand, it is taxpayers questioning tax penalties when taken off the parameters set by those decisions.
Daniel Earl Nelson
Lauffer Advocacy
