Bruno Calfat Advogados represented a construction company in an appeal of a writ of mandamus decided by the Federal Regional Court of the 2nd Region, which addressed the assessment of Withholding Income Tax (IRRF) on payments deemed to lack legal basis or made to unidentified beneficiaries, as well as the imposition of an aggravated penalty.
Originally, the construction company sought recognition that the collection was unenforceable and that the penalty imposed was appropriate, arguing for the need to observe legal and jurisprudential limits regarding sanctions.
In reviewing the appeal, the Court upheld the argument regarding the limitation of the aggravated fine, recognizing that the penalty must comply with the parameters established by the case law of the Federal Supreme Court, especially in the absence of proof of recidivism.
In addressing the issue, the ruling highlighted that the Federal Supreme Court has established the understanding that the qualified fine must observe the limits set forth in Theme 863, stating that “until a complementary federal law on the matter is enacted, the qualified tax fine […] is limited to 100% of the tax debt and may be increased only in cases of recidivism,” a scenario not present in the case under review.
In this context, it was determined that the penalty imposed should be adjusted to the parameters established by the Federal Supreme Court in Precedent 863, particularly in light of the prohibition on confiscation and the absence of recidivism, which led to its reduction.
The decision ensures that the penalty is in line with applicable case law, precluding the imposition of a fine in excess of the appropriate amount and guaranteeing that the construction company complies with the legally established limits.