Carf adota posicionamentos divergentes sobre planejamento tributário

Carf adota posicionamentos divergentes sobre planejamento tributário

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O parágrafo único do artigo 116 do Código Tributário Nacional, incluído pela Lei Complementar 104/2001, dispõe sobre a possibilidade de o Fisco desconsiderar atos ou negócios jurídicos praticados com a finalidade de dissimular a ocorrência do fato gerador do tributo ou a natureza dos elementos constitutivos da obrigação tributária, observados os procedimentos a serem estabelecidos em lei ordinária.

Assim, a aplicação do dispositivo antielisão fiscal depende de regulamentação por lei, o que não ocorreu até o momento.

A elisão fiscal consiste num planejamento tributário lícito, situação em que o contribuinte se organiza de modo a submeter-se a carga tributária inferior a que estaria sujeito inicialmente, sem que isso implique em sonegação fiscal.

Por diversas ocasiões, a Receita Federal ignorou a ausência de regulamentação do dispositivo e lavrou autos de infração em desfavor de contribuintes a pretexto da prática de elisão fiscal. Contudo, ao julgar recursos apresentados pelos contribuintes em face dessas autuações, o Conselho Administrativo de Recursos Fiscais (Carf) tem proferido decisões antagônicas.

Em 2014, o Carf julgou recurso de contribuinte que tinha por objeto social a importação, fabricação e revenda de derivados de petróleo. Ocorre que essa atividade está sujeita à incidência de PIS/Cofins monofásico, situação em que um único contribuinte assume toda a carga tributária incidente na cadeia produtiva.

Com a finalidade de diminuir licitamente a carga tributária de PIS/Cofins, o contribuinte constituiu empresa subsidiária, de modo que a atividade empresarial ficou dividida entre as duas empresas: uma delas responsável pela produção/importação e a outra pela distribuição.

Para reduzir o valor do PIS/Cofins, a empresa produtora/importadora revendia os produtos à distribuidora por valor menor que o de mercado. A empresa distribuidora concentrava o maior ganho de valor da mercadoria e revendia aos clientes, momento em que o produto já estava livre da incidência da contribuição.

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Ao julgar o caso, o Carf entendeu ser lícita a modificação da estrutura econômica do contribuinte com o desdobramento das suas atividades em decorrência da incidência monofásica do PIS/Cofins que onerou apenas uma etapa da cadeia (Processo 19515.001905/2004-67).

Numa discussão recente, envolvendo uma distribuidora de automóveis de luxo, o Carf também decidiu cancelar a autuação fiscal, afastando a aplicação do artigo 116, parágrafo único do Código Tributário Nacional, por ausência de regulamentação legal.

Na operação autuada, a concessionária havia criado outra empresa, que se encarregava da importação dos veículos, enquanto a comercialização ao consumidor final ficava a cargo da empresa principal. Tal operação tinha por efeito a redução da base de cálculo do IPI, importando veículos com valor mais baixo que o da comercialização. Após recolhido o imposto pela empresa importadora, o automóvel era vendido à empresa distribuidora, que comercializava ao consumidor final com o valor cheio (Processo 11065.724114/2015-03).

Já em outra discussão, envolvendo uma empresa mineradora, o Carf manteve a autuação por cinco votos a três. Neste caso, a mineradora se valeu de planejamento tributário para reduzir o valor devido de IRPJ e CSLL. O Carf concluiu que o artigo 116 do CTN já estaria regulamentado pelo Decreto 70.235/72, que dispõe sobre o processo administrativo fiscal (Processo 12448.737118/2012-69).

No Poder Judiciário, a questão está pendente de julgamento pelo Supremo Tribunal Federal. A esse respeito, a Confederação Nacional do Comércio discute a constitucionalidade de referido dispositivo legal, argumentando que teriam sido ofendidos diversos princípios constitucionais, entre eles o da legalidade. A Ação Direta de Inconstitucionalidade 2.446 foi ajuizada em 2001 e deste então aguarda julgamento, estando atualmente sob a relatoria da ministra Cármen Lúcia.

Portanto, tanto na esfera administrativa quanto na judicial, o tema ainda se encontra distante de receber definição, situação que provoca grande insegurança jurídica aos contribuintes.

Fonte: Conjur
Data: 19 de fevereiro de 2019
Acesso: 25 de fevereiro de 2019

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