The Federal Revenue of Brazil ("RFB") published Normative Rule no. 1,434, on Jan 2, 2014, whereby it attributes normative effectiveness and binding effect to its Inquiry Responses, which means an important change to tax legislation.
As known, the RFB is commonly inquired by the taxpayers, through Response to Inquiries, to clarify their position on the interpretation and application of tax rules to concrete situations. Previously, the instructions of these Responses to Inquiries had a binding effect only on the parties, that is, on the inquirer and the National Treasury, and did not extend to third parties1.
In this regard, the consolidated case laws of the Administrative Council of Tax Appeals ("CARF") state that the Response to Inquiries is an individual rule that binds the Tax Administration only in relation to the inquirer2.
With the publication of the mentioned Normative Rule, however, the Cosit (General Tax Coordination) Responses to Inquiries and the Divergence Reponses (issued at the verification of conflict among different Responses to Inquiries) now have a binding effect on an RFB level, backing up all taxpayers applying them, even if they have not officially consulted the Federal Revenue.
Therefore, we understand that the Cosit Responses to Inquiries and the Divergence Reponses become even more important in the tax legislation, taking into account that their effects surpass the parties to the proceeding that requested their issue.
As a result, and with the purpose of granting broad publicity to the conclusions of the RFB, Normative Rule no. 1,434/13 determines the publication on the internet (www.receita.fazenda.gov.br) of Cosit Responses to Inquiries and Divergence Reponses, except, however, for the information protected by tax secrecy in relation to the taxpayer that filed the inquiry.
It is important to state that the taxpayers that do not agree with the position issued by the RFB are authorized to judicially challenge the conclusions of such Responses to Inquiries and any penalties imposed by the tax authorities based thereon.
Footnotes
1. Administrative Council of Tax Appeals: Appellate Decision no. 3403-002.555, session of October 25, 2013.
2. Administrative Council of Tax Appeals: Appellate Decision no. 3101-001.209, session of August 22, 2012.
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