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The Federal Supreme Court (STF) concluded the joint trial of Extraordinary Appeal 796.939 and Direct Action for Unconstitutionality 4.905, declaring unconstitutional the application, by the Brazilian Federal Revenue, of a penalty of 50% in case of denial of administrative claims to offset or reimburse.
The provisions under analysis were paragraphs 15 and 17 of section 74 of Law 9430/96, which provides for a fine of 50% of the tax credit claimed in case of denial of a request for reimbursement or offset that is denied by the Federal Revenue.
Reporting Justices Edson Fachin and Gilmar Mendes based their votes mainly on the lack of an in-depth analysis regarding the taxpayer's good faith in the mere claim for reimbursement or offset. According to the Justices, the sanction would be an attempt to inhibit the constitutional right of taxpayers to recover amounts unduly collected, representing an offense to the constitutional right of petition and access to the Administration.
The Court issued the following thesis: "It is unconstitutional the isolated penalty provided by Law in case of a mere denial of an administrative claim to offset, since it does not represent an illicit act that can generate an automatic pecuniary penalty."
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