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Justice forces Carf to judge cases stopped for more than five years.

Tired of the delay of the Tax Appeals Board (CARF), a taxpayer went to the Federal District Federal Court and obtained an injunction for three appeals to be immediately considered. It seeks the application by the final court decision counselors that grants it presumed IPI credit on all input purchases produced by individuals, cooperatives and other non-contributing suppliers of PIS and Cofins.

The injunction, which benefits the Cortume Krumenauer leather industry, is the first to be heard in this regard. Carf has already been notified of the decision, but has not yet included the three cases - stopped more than five years ago - on the agenda of the next session, as determined. In addition to them, there are two other appeals on the subject, pending in the body for almost three years.

In the decision, Ivani Silva da Luz, the judge of the 6th Federal Court of the Federal District who is answering for the 9th Court, partially granted the injunction, demanding the immediate judgment of only the three cases in which not even drawn rapporteurs. In the other two, with designated rapporteurs, the deadlines of Carf's bylaws must be respected. Cases must be included in the agenda within a maximum of six months.

Carf has been taking an average of five to ten years to prosecute, according to a 2015 survey by the Ministry of Transparency. In April, according to Carf's latest management report, the agency's stockpile was approximately 119,000 cases, involving $ 614 billion.

The firm's lawyer, Aline Nack Hainzenreder of Diehl & Cella Advogados Associados, argued in the proceedings that the Constitution, in Article 5, item LXXVIII, establishes the principle of reasonable length of proceedings. And that article 24 of Law No. 11.457 / 2007 brings a period of 360 days for administrative decision, from the petition, defense or appeals protocol of the taxpayer. Aline also cited precedent of the Superior Court of Justice (STJ), in repetitive (REsp No. 1138206), for the application of the deadline.

In drafting the writ of mandamus, Aline did some research on the issue and found no case to demand Carf's deadline. "This precedent of the STJ is generally used in injunctions against the IRS, to expedite the analysis of credit applications. We never came to the Carf," says the lawyer. She points out that the industry-friendly court decision was final in 2009 - almost a decade ago.

Carf's presidency reported on the record. He argued that it would be impossible to judge administrative proceedings within the time limit because there is a need to comply with the rules of procedure "for distribution, indication of the file for the agenda, requests for views and for the formalization of the judgment". He added that the distribution of processes, draw of rapporteurs and inclusion in the agenda follow a priority order.

In analyzing the case (injunction No. 1014280-46. 2018.4.01.3400), Judge Ivani Silva da Luz understood that the requirements to grant the injunction would be present. In the decision, she cites the precedent of the Supreme Court, in repetitive, and states that the reasonable length of the judicial and administrative process is provided for in the list of fundamental rights and guarantees of the Constitution.

For the magistrate, it is unreasonable for Carf to set a deadline of six months for the rapporteur to include the case on the agenda, "but there is no deadline for the actual distribution of the case, which would make it unhelpful to predict or any other time limit in the rules of procedure ".

According to attorney Pedro Moreira, of CM Advogados, as the tax credit is with its enforceability suspended during the process in Carf, there is often no interest of the taxpayer to seek the judiciary to force inclusion in trial. "Also because you have the sensitivity that this can create a situation of discomfort before the counselors," he says. For Moreira, the decision "is good because it honors the efficiency and reasonable duration of the process, but we must carefully consider the possibility of bringing the matter to the judiciary".

The lawyer Diego Aubin Miguita, from Vaz, Buranello, Shingaki & Oioli Advogados, says that the thesis is interesting for companies that have book-entry tax credits (generated by IPI, PIS and Cofins accumulated at some stage of the production chain). where the product is immune or exempt), which is not updated by Selic. In these cases, he adds, in addition to the inclusion in Carf's agenda, it may be requested to update these values ​​through the STJ precedent (REsp 1,344,735).

Wanted by Valor, the Ministry of Finance informed, through a note sent by its press office, that "the Carf will not speak up".