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The 1st Panel of the Upper Chamber of CARF, when considering the deduction of premium expenses from the IRPJ and CSLL calculation basis in an operation involving related parties (generating the so-called internal premium), due to a pro-taxpayer tie-breaking, waived the application of the qualified fine of 150%. For the Panel, there was no evidence of fraud or willful misconduct on the part of the taxpayer to justify the application of the aggravated penalty (Order No. 9101-005.973).

Art. 44 of Law No. 9.430/96 provides for the imposition of an ex officio fine of 75% on the total or difference of the tax, in cases of default or inaccuracy of the declaration provided to the Tax Authorities. This penalty, as determined in §1, can be increased to 150% (qualified fine), if evasion, fraud, or collusion occurs.

In the precedent under discussion, the qualified fine of 150% was applied at the time of the issuance of the tax deficiency notice, as the inspection understands the impossibility of amortization of premium arising from the merger of shares, using a vehicle company. In the consideration of the case by CARF, the rapporteur stated that, although there are differences about the criteria for legitimate deduction of premium, governed by Art. 7 and 8 of Law No. 9.532/17, the same consequences of evasion, fraud or collusion cannot apply to these situations.

We understand that the position taken in order No. 9101-005.973 was correct. Operations involving amortization of premium comprise a large volume in the administrative jurisprudence and it would not be reasonable to assume that, in cases unfavorable to taxpayers, the practice of acts with fraud and/or willful misconduct by companies would be automatically deducted.

The decision is part of a series of CARF precedents that became favorable to taxpayers as a result of the end of the casting vote with the enactment of Art. 28 of Law No. 13.988/20. Specifically in relation to operations involving premium, there are precedents that, in addition to waiving the incidence of the qualified fine, they further recognize the use of vehicle companies to take advantage of the provisions of Art. 7 and 8 of Law No. 9.532/97.