By the aforementioned decision published on April 4th 2018, issued in case No. 10880,906342 / 2008-96, the 2nd Class of the Administrative Council of Tax Appeals (“CARF”) unanimously innovated by restricting the application of article 170-A of the National Tax Code – “Código Tributário Nacional” (“CTN”), because it understood the possibility of the taxpayer to make tax compensation before the final decision not subject to appeal that recognizes the tax liability, in view of the existence of a binding decision issued by the Federal Supreme Court – “Supremo Tribunal Federal” (“STF”), as follows:
“COMPENSATION REQUIRED BEFORE THE FINAL DECISION NOT SUBJECT TO APPEAL IN FAVOR OF THE TAXPYER. ISSUE THAT MUST BE SUPERIMPOSED BY FORM. PREVALENCE OF “RATIO DECIDENDI” OF PRETORIAN PRECEDENT OF A BINDING CHARACTER WITHIN THE ARTICLE 170.A OF THE “CTN”.
Although the request for compensation perpetrated by the taxpayer has been opposed to the literality of art. 170A of the “CTN”, at the end of the judicial process the dispute, was deemed valid, based on a binding precedent of the “STF”. (RE No. 357,950) which, in turn, calls for to what is expressed on articles 489, §1, subsection VI, 926 and followings, all of “CPC” / 2015, as well as to what is expressed on article 62, paragraph 1, subsection II, letter “b”, of the “RICARF” and, also, to the one prescribed in article 2, subsection V of the Ordinance “PGFN” n. 502/2016.
Voluntary appeal provided to subject the Public Administration to the binding precedent of the “STF” (SR No. 357,950). Request for compensation to be examined by the competent authority only for purposes of appropriateness of the compensated amount.”