A aplicação do artigo 24 da LINDB pelo CARFanálise das correntes argumentativas que levaram à edição da súmula 169 do CARF

Resumo

This study sought to analyze the application of Article 24 of the Law of Introduction to the Norms of Brazilian Law (LINDB) by the Federal Administrative Court of Tax Appeals and to map the arguments that led to the publication of the Legal Precedent 169, which excludes the use of the provision in the context of the tax administrative proceeding, without, however, indicating the legal basis for this. As a methodology, the previous judgments indicated in Legal Precedent169 were read, as well as the other judgments of the 1st Panel of the Higher Chamber of Tax Appeals, issued before the publication of the Legal Precedent in 2021, with the objective of identifying the legal basis of this pacifying instrument of jurisprudence. To analyze these decisions, the Courts's position regarding the application of the article in each judgment was sought. Having extracted the relevant information from the judgments, the study systematized the arguments and verified their recurrence, so that it was possible to determine whether or not there was a uniformity of arguments among the precedents. Due to the recurrence in the judgments analyzed, there was a strong indication that the legal basis for Legal Precedent 169 was the alleged “adjudicatory function” of the Federal Administrative Court of Tax Appeals, which would not be compatible with the review activity contemplated by Article 24 of the LINDB. However, the preponderance of this argument does not mean that the entire debate on the subject was settled to the point of justifying the publication of the Legal Precedent. The research found that the other grounds – in addition to the adjudicatory function – were not addressed in a recurring and uniform manner in the Federal Administrative Court of Tax Appeals, which is evident by the existence of heterogeneous theses, some of which contradict each other, including theses favorable to the application sought by the taxpayers. The study concluded that, despite the preponderance of one of the arguments found, the debate had not yet been solidified regarding other important points regarding the application of Article 24 to the tax administrative proceeding. With the publication of the Legal Precedent, the opportunity for the debate to mature, with the development of the other identified theses, was impaired. It is understood that Legal Precedent 169 erroneously suggests that the debate within the Federal Administrative Court of Tax Appeals was consolidated when, considering the decisions that supported it, there was still much to be discussed.

Ficha do documento

Tipo

Outro

Ano

2025

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/37792

Temas

Finanças Públicas

Palavras-chave

LINDBCARFArtigo 24 da LINDBSúmula 169 do CARFDireito tributárioSegurança jurídicaOrientação geralRevisãoLançamentoProcesso administrativo fiscalFederal administrative court of tax appealsArticle 24 of the LINDBLegal precedent 169Legal certaintyTax lawTax administrative proceedingDireitoBrasil. [Lei n. 8.429, de 02 de junho de 1992]Conselho Administrativo de Recursos FiscaisDireito tributário - Brasil