Judiciário autoriza empresas a usar créditos de IR no primeiro semestre

Judiciário autoriza empresas a usar créditos de IR no primeiro semestre

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O Judiciário tem permitido que empresas com créditos de Imposto de Renda (IRPJ), por terem recolhido mais do que de fato deviam ao longo do ano passado, utilizem os valores para o pagamento de novos tributos já neste primeiro semestre. São decisões que contrariam o entendimento da Receita Federal. O órgão, em dezembro de 2017, publicou norma que condiciona os pedidos de compensação a uma declaração fiscal cuja entrega ocorre geralmente no mês de julho.

Há ao menos uma sentença e duas liminares, no Rio de Janeiro e em São Paulo, favoráveis aos contribuintes. As decisões são importantes porque, segundo especialistas, a maioria dos que têm o chamado “saldo negativo” já havia planejado quitar os tributos do começo do ano por meio da compensação quando a Instrução Normativa (IN) 1.765, que trata do tema, foi publicada. E, se seguissem a nova regra, teriam que tirar dinheiro do caixa.

É possível que as empresas tenham saldo negativo de Imposto de Renda no caso de, ao longo de 2017, terem optado pelo recolhimento por estimativa (com base numa previsão de lucro, mês a mês). No fim do ano, ao fazerem o ajuste de contas, registraram que pagaram mais à União do que deviam. Essa diferença de valores é que pode ser usada, no ano seguinte, para quitar tributos federais. Entre eles o próprio IRPJ e também CSLL e PIS e Cofins.

“As empresas estão saindo da crise. Colocar mais sete meses de custo de capital em meio a esse ambiente de baixo caixa, da forma como prevê a IN, é muito complicado”, diz o advogado Luca Salvoni, do escritório Cascione, Pulino, Boulos & Santos.

Antes de a Receita Federal publicar a norma, os contribuintes podiam fazer a compensação já no mês seguinte ao do balanço final – independentemente de terem ou não entregado a declaração. E é isso que está sendo garantido na Justiça.

A primeira sentença da qual se tem notícias foi proferida pela 1ª Vara Federal de São Bernardo do Campo e beneficia uma empresa do setor automobilístico (processo nº 5000448-24.2018.4.03.6114). Na decisão, o juiz do caso destaca que a medida “cria obstáculos ao direito à compensação tributária”.

Ele chama a atenção ainda para o fato de “a regulamentação legal da compensação tributária se dar conforme a Lei nº 9.430, de 1996”. No artigo 70 consta que poderá ser feita no período subsequente à apuração.

A Receita vem respondendo nos processos que a Escrituração Contábil Fiscal (ECF) – a declaração que deve ser preenchida como condicionante aos pedidos de compensação – está disponível aos contribuintes desde o começo do ano e que o encerramento do prazo é que ocorre em julho.

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Advogados da empresa beneficiada pela decisão judicial, Marcelo Annunziata e Romulo Coutinho, do escritório Demarest Advogados, dizem, no entanto, que são raras as empresas que conseguem apresentar a declaração antes de julho. E isso pela complexidade do documento. O manual de preenchimento da ECF, afirmam, tem cerca de 500 páginas.

Além disso, entre as informações que devem ser declaradas está o balanço patrimonial da empresa, que pelo Código Civil tem até o mês de abril para ser aprovado pelos acionistas. “É praticamente impossível acelerar o processo todo. Deve-se levar em conta ainda que a falta ou erro de informações na declaração acarreta em multas pesadas aos contribuintes”, afirma Annunziata.

Há liminares proferidas também em favor de contribuintes na 24ª Vara Cível Federal de São Paulo e na 28ª Vara Federal do Rio de Janeiro. A da capital paulista foi dada a uma empresa de telefonia (processo nº 50003387-19.2018. 4.03.6100), enquanto que a do Rio favoreceu uma companhia do setor de energia (nº 0007540-03.2018.4.02.5101).

O tributarista Leo Lopes, do W Faria Advogados, entende que há dois tipos de ilegalidade na IN publicada em dezembro pela Receita: um geral e outro específico. Primeiro porque o órgão federal estaria impondo aos contribuintes uma obrigação que não tem previsão em lei e depois porque, mesmo se fosse válido, haveria violação ao princípio da não surpresa.

“Muitas empresas que recolheram o imposto por estimativa, no ano passado, fizeram isso porque sabiam que no começo do ano poderiam utilizar aquele crédito acumulado. A notícia sobre a mudança da regra foi dada depois que eles já haviam pago daquela forma praticamente o ano todo”, enfatiza Leo Lopes.

Entre os contribuintes a IN vem sendo vista como um instrumento que tem como único objetivo alimentar os cofres do governo. Na época em que publicou a norma, a Receita divulgou que os pedidos de compensação somaram mais de R$ 70 bilhões em 2017.

Para Luca Salvoni e Rafael Vega, do escritório Cascione, Pulino, Boulos & Santos, não há argumento técnico que justifique a medida. “A Receita não vê se o saldo é bom ou ruim na hora em que o contribuinte entrega a declaração. Isso é feito depois, geralmente perto da decadência, que é de cinco anos. Então não há porque exigir esse documento como requisito para a compensação. Não muda nada”, diz Vega.

A Receita Federal foi procurada pelo Valor, mas não retornou até o fechamento da edição. Já a Procuradoria-Geral da Fazenda Nacional informou, por meio de sua assessoria de imprensa, que não se manifestaria sobre o assunto.

Fonte: Valor Econômico
Data: 22 de março de 2018
Acesso: 23 de março de 2018

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