Bill presented in Senate proposes special tax arbitration

On September 3, 2020, Bill 4,468 / 2020, presented by Senator Daniella Ribeiro, was presented to the Federal Senate, proposing the institution of special tax arbitration.

On September 3, 2020, Bill 4,468 / 2020, presented by Senator Daniella Ribeiro, was presented to the Federal Senate, proposing the institution of special tax arbitration. The procedure may be initiated in the course of inspection, at the request of the taxpayer or at the provocation of the Public Administration, with the purpose of preventing conflicts through the most appropriate solution of disputes regarding matters of fact. Except for the cases in which the tax credit has already been constituted by means of a tax assessment or tax assessment notice and the imposition of a fine.

The importance of the proposal, which fits in the perspective of consolidating and expanding the possibility of the Public Administration to resolve conflicts by the appropriate methods of conflict resolution, is emphasized. This is observed, for example, in Law No. 13,129 / 2015 regarding arbitration involving conflicts associated with available property rights; in Law No. 13,140 / 2015 regarding the creation of Chambers for the Prevention and Administrative Resolution of Conflicts in the bodies of Public Advocacy; in Law No. 13,190 / 2015 regarding arbitration in contracts under the Differentiated Public Contracts Regime.

More recently, the realization of this trend is seen in Decree No. 10,025 / 2019 related to the use of arbitration in conflicts involving the Federal Public Administration in the port and road, rail, waterway and airport sectors; and in Law No. 13,988 / 2020 with the establishment of requirements and conditions for the Union, its autarchies and foundations, and the debtors or adverse parties to carry out a transaction related to the collection of credits from the Public Treasury, of a tax or non-tax nature.

The PL is divided into four main axes, dealing with the establishment and conditions of the special tax arbitration procedure to be carried out in Brazil, in Portuguese, in compliance with the rules of national law, ensuring ample defense, contradiction and publicity of the sentence. arbitration (articles 1 and 3); restriction of controversies that may be the subject of the procedure to those of a factual nature, departing, among others, from discussions about law in theory and constitutionality of legal norms (article 2); arbitration commitment that will formalize the option for the use of special arbitration with mandatory clauses (articles 5, 6 and 7); formation of the arbitral tribunal, necessarily composed of three arbitrators (article 4); binding character of the arbitral award as to the facts judged, arbitrator in a unanimous decision, possibility of annulment of said award after 60 days of knowledge by the parties of the arbitral award in specific cases and payment of condemnation by the Union through the issuance of a precatory or small value requisition (articles 8, 9, 10 and 11).

In addition, the PL proposes the application of special arbitration in two situations involving factual and technical matters, namely the administrative process of tax consultation within the scope of the Federal Revenue Service, provided for in Law No. 9,430 / 1996, and the resulting credit quantification judicial decision that has not yet been settled in court, subject to the requirements and conditions provided for in the PL (article 12), in addition to the subsidiary application of the provisions of Law No. 13.988 / 2020 regarding the tax transaction (article 13).

In justification, the motivations for the presentation of the PL are explained, the need for legal certainty, the state’s duty to quickly resolve disputes, significant judicialization that implies a scenario of uncertainty and slowness, Portugal’s successful experience with tax arbitration, among others. In this way, the expectation is organized with the creation of a “fair, reasonable institute that brings benefits to the system as a whole” with win-win solutions for the taxpayer and the tax authorities, reducing the judicialization of conflicts, especially in previous moments the tax assessment and the application of a fine.

By: Wilson Sales Belchior