Unconstitutionality of the Isolated Fine Set Forth in Paragraph 17 of Article 74 of the Law nº 9.430/1996 even after the Modifications Introduced by Law nº 12.844/2013 and nº 13.097/2015

Improper Restriction of the Taxpayer’s Right to Claim the Tax Credits’ Offset Request

Abstract

The Paragraph 17 of Article 74 of the Law n. 9.430/1996, in its current wording, set forth the application of the isolated fine applied to the amount of debt subject of the not approved offset request, except in the hypothesis of falsity of the declaration presented by the taxpayer. This provision, however, do not take into consideration that claiming is the taxpayer’s regular right. Therefore, it contravenes the right to petition as well as the proportionality principle, ending up being a truly political penalty. Thus, in spite of the contrary arguments espoused by the Tax Administration, the Authors believe that the modifications introduced by Laws n. 12.844/2013 and n. 13.097/2015 were not successful in warding the unconstitutionality that jeopardized prior wording of the referred legislative disposal, is expected to this is declared by Supreme Court in the judgment of RE n. 796.939.