Post by xyz3000 on Feb 12, 2024 15:10:45 GMT 8
The Federal Revenue cannot declare a company's CNPJ unsuitable without due legal process being respected. It seems obvious. However, the company Hadco Importadora e Exportadora had to go to court to enforce this right. The company's CNPJ was declared unfit by the Federal Revenue Service, based on the rules contained in Normative Instruction 228/2002. The rule authorizes the customs authority to seize and declare the loss of goods, in a single instance, in addition to applying the penalty of CNPJ ineligibility, without giving the company the opportunity to defend itself. The penalty is applied whenever there is suspicion of irregular import. Hadco's lawyer, Vitor Werebe , to guarantee the right to full defense, filed a request for a Writ of Mandamus so that, before the penalty was imposed, the company could defend itself against the accusation of irregular importation.
Judge Luciana de Souza Sanchez, from the 10th Federal Court of São Paulo, accepted the injunction. “I see that this demand is justified as the normative instruction (228/2002), being an infralegal normative act, does not have the power to institute and impose obligations on the taxpayer, contrary to the law, in discredit to the right to property constitutionally guaranteed”, he Estonia Email List considered. “It is undeniable to recognize that, even though the duty of the Federal Revenue Service to rigorously investigate situations in which it envisages the possibility of tax fraud is necessary, the requested authority [delegated from the Federal Revenue Service for Tax Administration - Derat] is not legitimized. to use infra-legal procedures in order to regulate the matter and, ultimately, guide its conduct”, explained the judge.
According to Luciana de Souza Sanchez, “admitting such negligence, that is, that the requested authority would be authorized to apply sanctions and decree the penalty of forfeiture of assets without legal support, would be the same as accepting the offense against the principle of strict legality” . For the judge, “there was a restriction of defense to the extent that, at first glance, it appears that in the tax representation, the taxpayer was at no time summoned to present any defense, a procedure that is out of step with the necessary observance of due legal process , which is known to be mandatory in cases of administrative challenge”. Luciana de Souza Sanchez ordered the delegate from the Federal Revenue Service for Tax Administration to stop initiating the procedure for declaring the company's registration with the CNPJ unsuitable and, if it has already been done, to suspend it.
Judge Luciana de Souza Sanchez, from the 10th Federal Court of São Paulo, accepted the injunction. “I see that this demand is justified as the normative instruction (228/2002), being an infralegal normative act, does not have the power to institute and impose obligations on the taxpayer, contrary to the law, in discredit to the right to property constitutionally guaranteed”, he Estonia Email List considered. “It is undeniable to recognize that, even though the duty of the Federal Revenue Service to rigorously investigate situations in which it envisages the possibility of tax fraud is necessary, the requested authority [delegated from the Federal Revenue Service for Tax Administration - Derat] is not legitimized. to use infra-legal procedures in order to regulate the matter and, ultimately, guide its conduct”, explained the judge.
According to Luciana de Souza Sanchez, “admitting such negligence, that is, that the requested authority would be authorized to apply sanctions and decree the penalty of forfeiture of assets without legal support, would be the same as accepting the offense against the principle of strict legality” . For the judge, “there was a restriction of defense to the extent that, at first glance, it appears that in the tax representation, the taxpayer was at no time summoned to present any defense, a procedure that is out of step with the necessary observance of due legal process , which is known to be mandatory in cases of administrative challenge”. Luciana de Souza Sanchez ordered the delegate from the Federal Revenue Service for Tax Administration to stop initiating the procedure for declaring the company's registration with the CNPJ unsuitable and, if it has already been done, to suspend it.