Application of the principle of consumption (absorption) to remove the double taxpayer penalty in Tax Law
Many companies are fined for submitting an ancillary obligation with incorrect data. In the same review the tax authority, there may also be the issuance of a separate Tax Assessment, on the charge of non-payment of VAT (ICMS), in view of the same conduct (transmission of the obligation with incorrect data, relating to the same reference month).
In such case, these are simultaneous infractions arising from the same conduct considered by the administrative authority to be an infraction, and tax charges based on the same evidence set.
In this sense, the Superior Chamber of the TIT has understood that it is imperative that the most serious tax charge, that is, the one whose legal value is most relevant – as is the case with the lower VAT (ICMS) payment – absorb the less serious charge – even though it generates a heavier penalty, but it does not result from the breach of the main tax obligation, since it is only a matter of submitting the ancillary obligation with incorrect data.
Considering, as tacked, the nexus of dependence existing between the tax obligations, there is no way to penalize to the taxpayer twice, being necessary to observe the principle of absorption (consumption), in fact, of another postulate, namely, the administrative morality.
Our office is prepared to advise our customer on the application of this important principle, derived from Criminal Law, in Tax Law, in order to claim the taxpayer ‘s right not to be doubly penalized.
More information: reginaldo.santos@correiadasilva.com.br
About The Author
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Advisory and Tax Litigation Nucleus
Category: CONSULTATIVE AND ECONOMIC LITIGATION, Reginaldo Angelo dos Santos, TAXATION
Tags: dublepenalty, correia da silva, correia da silva advogados, correia dasilva advogados, csa, taxassessment, icmsPosted in: 03/03/2020
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