Maioria das decisões do Carf é desfavorável aos contribuintes

Maioria das decisões do Carf é desfavorável aos contribuintes

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Por Laura Ignacio e Beatriz Olivon.

Um levantamento da FGV Direito SP sobre os julgamentos da 1ª Seção do Conselho Administrativo de Recursos Fiscais (Carf), após a deflagração da Operação Zelotes, mostra que 68% das decisões em 1.409 matérias apreciadas são favoráveis ao Fisco. A 1ª Seção julga recursos sobre IRPJ e CSLL, ou seja, os casos de valores mais altos. Entre eles, estão temas como ágio, a dedutibilidade do juros sobre o capital próprio (JCP) e a tributação dos lucros auferidos por coligadas e controladas no exterior.

Os contribuintes só obtiveram vitória em 32% dos casos. Foram excluídos os resultados parciais e os recursos não conhecidos. A pesquisa, feita com base nos acórdãos publicados de dezembro de 2015 até 30 de junho, também concluiu que das 62 decisões definidas por voto de desempate – o chamado voto de qualidade, sempre de um representante do Fisco -, 55 foram favoráveis à Fazenda (96%).

Segundo Cristiane Leme Ferreira, coordenadora do levantamento, o objetivo do estudo é dar maior transparência ao Carf e, consequentemente, maior segurança jurídica para as empresas fazerem planejamentos – inclusive de investimentos – com base em jurisprudência do conselho. “Para as empresas, é importante usar dados de análises sobre as matérias julgadas pelo Carf para decidir quando recorrer, o que argumentar e saber o tamanho do risco de cada causa, já que trabalham com contingência”, diz.

As sessões de julgamento do Carf ficaram suspensas entre março, quando foi deflagrada a Operação Zelotes, e novembro de 2015. Trata-se da investigação de um esquema de corrupção no órgão, por meio da suposta compra de votos de conselheiros. Depois disso, o regimento interno do órgão foi reestruturado, assim como a composição das câmaras de julgamento. Como os representantes dos contribuintes passaram a não poder mais advogar em processos tributários, recebendo uma remuneração de R$ 11 mil, houve uma debandada de conselheiros do órgão, até hoje incompleto.

O presidente do Carf, Carlos Alberto Barreto, contesta a conclusão do estudo. “As decisões hoje são mais favoráveis ao contribuinte, considerando todos os acórdãos, das três seções de julgamentos, após a retomada dos julgamentos no Carf”, afirma. Sobre o volume de decisões por voto de qualidade, Barreto alega que o crescimento é resultado de vários julgamentos em bloco de temas repetitivos. E pelo fato de agora haver vários conselheiros novos, que pensam diferente. “E, nesse caso, a tendência já era favorável à Fazenda.”

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Para tentar resolver o problema das câmaras incompletas, que podem impactar a paridade do conselho, o Carf tem feito constantes reuniões com as confederações que representam os contribuintes. “Como o regimento permite o julgamento com a maioria simples, metade mais um, se houver quatro conselheiros do Fisco e apenas um dos contribuintes para julgar, vamos julgar. Temos um acervo de 118 mil processos”, afirma.

A Procuradoria-Geral da Fazenda Nacional (PGFN) afirma que não houve uma mudança de orientação no Carf. “Não se verifica uma reversão de jurisprudência importante”, diz o procurador-chefe da Coordenadoria do Contencioso Administrativo Tributário (Cocat), Moisés de Sousa Carvalho Pereira.

Para o procurador, o Carf está julgando neste ano muito mais processos relevantes, e de valor maior, do que fazia em anos anteriores. “E o voto de qualidade aconteceu em menos de 5% dos processos analisados pela FGV. Ou seja, a maioria absoluta dos casos não é definido por voto qualidade.”

Porém, os contribuintes começam a elaborar projetos de lei para tentar mudar a esfera administrativa. Um deles já tramita no Congresso Nacional e trata da extinção do voto de qualidade. O PL nº 6.064, de 2015, do deputado Carlos Bezerra (PMDB/MT), propõe que nos casos de empate nas decisões do conselho seja aplicada a interpretação mais favorável ao contribuinte. Nessas situações excepcionais, a PGFN poderia entrar com ação judicial – hoje não pode fazer isso.

Uma outra proposta legislativa foi elaborada pelo Movimento de Defesa da Advocacia (MDA). Ela cria uma única instância de julgamento, composta só por funcionários do Fisco, mas mantendo todos os direitos e garantias dos contribuintes- como defesa oral, jurisprudência acessível e pauta pública.Quando o contribuinte fosse derrotado, haveria o direito à automática suspensão da exigibilidade do débito (não seria exigida garantia) até que seja proferida a sentença judicial. E as causas originadas no Carf seriam julgadas por varas especializadas.

“Hoje, ocorre um uso indiscriminado do voto de qualidade em desfavor dos contribuintes. Tem demorado até cinco anos para um processo administrativo chegar ao fim e, depois disso, o contribuinte se vê na obrigação de apresentar garantia para discutir na Justiça débitos impagáveis”, afirma Marcelo Knopfelmacher, presidente do conselho do MDA.

Fonte: Valor Econômico
Data: 09 de setembro de 2016
Acesso: 09 de setembro de 2016

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