Carf permite tributação de lucro de controladas indiretas no exterior

Carf permite tributação de lucro de controladas indiretas no exterior

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O lucro de controladas diretas e indiretas no exterior pode ser tributado mesmo em casos em que há tratado entre o Brasil e o país estrangeiro para evitar a dupla tributação. Esse foi o entendimento da 1ª Turma da Câmara Superior do Conselho Administrativo de Recursos Fiscais (Carf) ao julgar ontem dois processos sobre o tema.

A tributação das controladas diretas já havia sido julgada no conselho, nesse mesmo sentido, em 2016, contrariando precedente do Superior Tribunal de Justiça (STJ). O tema ainda deverá ser decidido pelo Supremo Tribunal Federal (STF). Já a tributação das indiretas nunca havia sido julgada pela Câmara Superior do Carf. Há poucos processos sobre o tema no órgão. A Procuradoria-Geral da Fazenda Nacional (PGFN) desconhece precedentes no Judiciário.

A discussão é relevante porque, ao usar o tratado, o contribuinte fica livre do pagamento de uma alíquota sobre lucro no exterior de 34%. Do percentual, 25% corresponde ao Imposto de Renda (IR). No caso de controladas indiretas, o Fisco costuma questionar o uso de uma controlada direta em país com o qual o Brasil tem tratado como um “escudo” para impedir a tributação da controladas indiretas.

Na Câmara Superior, a questão começou a ser julgada por meio de um caso que envolvia a distribuidora de bebidas Eagle, do grupo Ambev. O processo chegou ao Carf em 2008. A empresa recorreu para cancelar autuação recebida em 2005, para exigência de IR e CSLL referentes a 2002. A cobrança se refere a lucros auferidos no exterior por intermédio de controlada indireta, subsidiárias da controlada direta Jalua, situada nas Ilhas Canárias, na Espanha, país com o qual o Brasil possui tratado contra a bitributação.

A 2ª Turma da 1ª Câmara da 1ª Seção havia afastado a tributação dos lucros da Jalua por entender aplicável o tratado Brasil-Espanha. Mas manteve a tributação das subsidiárias localizadas no Uruguai e na Argentina (que teve prejuízo). Com a decisão, PGFN e Eagle recorreram à Câmara Superior.

Em seu voto, o relator, conselheiro André Mendes de Moura, representante da Fazenda, afirmou que lucros de controladas ou coligadas com participação direta ou indireta da brasileira podem ser objeto de tributação.

Para Moura, o tratado firmado para impedir a bitributação entre Brasil e Espanha afasta a tributação de lucro de residentes na Espanha e não lucros de participação de companhia brasileira em empresa na Espanha. Assim, o relator negou o recurso da empresa e aceitou o da PGFN para restabelecer a tributação dos lucros estabelecidos na Jalua e também juros de mora sobre a multa de ofício.

A conselheira Cristiane Silva Costa, representante dos contribuintes, divergiu. Ela entendeu que os resultados das indiretas estão sendo consolidados na controlada na Espanha e por isso seriam abrangidos pelo tratado Brasil-Espanha. Isso só não ocorreria, acrescentou, se fosse indicada alguma fraude na estrutura da operação.

“Estamos negando um tratado firmado pelo país”, afirmou na sessão o conselheiro Luís Flávio Neto, representante dos contribuintes. O julgamento dividiu os conselheiros e foi resolvido no voto de qualidade, do presidente, Carlos Alberto Freitas Barreto.

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A empresa ainda pode apresentar embargos no Carf ou recorrer à Justiça. No fim do julgamento, o advogado da companhia afirmou que não pode se manifestar sobre o caso.

Na sequência, foi julgado um processo envolvendo a Gerdau Internacional Empreendimentos em que o posicionamento do Carf foi reafirmado. Mas por peculiaridades da autuação parte da cobrança foi afastada.

A autuação analisada era referente a diversas controladas indiretas da companhia, ligadas a controladas diretas na Espanha e no Canadá, a Gerdau GTL Spain e a Gerdau Steel. As controladas indiretas tributadas localizam-se no Uruguai (Laisa e Axol), Ilhas Virgens (Gtl Equity), Holanda (GTL Financial) e Argentina (Siper Invers).

O relator, conselheiro André Mendes de Moura, representante da Fazenda, reafirmou que poderia haver a tributação das controladas indiretas e aceitou parcialmente o recurso da PGFN. Mas no voto manteve a tributação apenas em relação a duas controladas indiretas, Laisa e GTL Financial.

Segundo o relator, nos outros três casos, a apuração da base para tributação foi incorreta. A fiscalização se baseou na equivalência patrimonial e não nos lucros efetivamente auferidos pelas empresas. Por isso, afastou a cobrança.

Pelo voto dos outros conselheiros, foi mantida apenas a tributação referente à Laisa, por causa de particularidade na autuação da GLT Financial. No julgamento também ficou determinado o retorno da ação para turma do Carf julgar se há obrigatoriedade de compensação de prejuízo fiscal, assim como a compensação com valores de Imposto de Renda pagos pelas empresas nos seus países e a cobrança de juros sobre multa.

O valor da autuação, de 2010, é de R$ 231,6 milhões, referente ao ano calendário de 2005. Como a decisão foi parcial, não é possível saber qual o valor mantido. A advogada da empresa, Marta Ione Guex de Oliveira, afirmou que pretende recorrer da autuação referente à Laisa na Justiça.

Por Beatriz Olivon | De Brasília

Fonte: Valor Econômico
Data: 15 de março de 2017
Acesso: 17 de março de 2017

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