The new tax fines of the state of Rio Grande do Norte and their effects on the infraction notices.

By: Evandro Zaranza

State Law No. 10,555, of July 16, 2019, innovated the punitive legislation of tax law (tax fines) in relation to transactions involving Tax on Goods and Services (ICMS).

Respecting repeated decisions of the Federal Supreme Court (STF) and also the Court of Justice of the RN (TJRN) that consider confiscating tax fines exceeding 100% of the amount of tax credit due, updated, through the law, fines in transactions involving the ICMS , reducing them to a large extent and also creating new penalties.

Guaranteed by the Federal Constitution in force, the National Tax Code exempts from the principle of non-retroactivity of the tax rule, the less severe sanctioning law.

In tax law there is an institute called benign retroactivity, provided for in art. 106 of the CTN and, in practice, allows the retroactive application of rules that stipulate tax sanctions, when the expressly interpretive rule excludes the application of a penalty to the violation of the interpreted provisions; as well as, in the event of an act not definitively judged: stop defining it as an infraction; stop treating it as contrary to any action or omission requirement as long as it has not been fraudulent and has not resulted in the non-payment of tribute; and when it is punished less severely than that provided for by law in force at the time of its practice.

In practice, the new Law 10.555 / 2019 now allows to be applied in the past infraction notices, provided that the fine imposed has been reduced in the new law.

This is the case, for example, of the new wording to art. 64, item III, letter “g”, creating a sanctioning hypothesis that did not exist in the previous local State ICMS Law, Law no. 6,968, of December 30, 1996, since it started to create specific punishment for the ICMS generating facts related to isolated fine, hypothesis in which occurs only the breach of ancillary obligation, not involving the non-payment of ICMS, including providing for reduction of 50% of its value.

Let's look at the comparative table.

Law 6.968 / 1996 - Standard applied to the assessment noticeLaw 10.555 / 2019 - current legal text
Article 64 The following infractions of the tax legislation will be punished with a fine: […]

III - regarding tax documentation and bookkeeping:

[…]

f) fail to write in the proper fiscal book, fiscal documents, within the regulatory deadlines: fifteen percent of the commercial value of the goods;

Art. 64. The following infractions to the tax legislation are punished with a fine: […]

III - regarding tax documentation and bookkeeping:

[…]

g) fail to book or book in accordance with the law, tax documents in the tax wording, within the regulatory deadlines: 10% (ten percent) of the commercial value of the goods or service consigned in the tax document, reducing the fine by 50% (fifty per cent) when the infraction does not result in the non-payment of tax, subject to the provisions of § 5 of this article; 

[stressed]

 

From the literal and comparative interpretation of the text of Law No. 6,968 / 1996, prior to the publication of Law No. 10,555 / 2019, it is clear that there was no provision for a tax fine for the hypothesis regarding tax documentation and bookkeeping in the face of the taxpayer. of bookkeeping in the tax book, when, from the commission of the infraction, it did not result from the non-payment of the tax due.

It is concluded that for the past infraction notices and which are in the unfinished administrative or judicial proceedings, it is possible to apply the new law and reduce the fine imposed or even cancel in specific cases.

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Evandro Zaranza

Partner lawyer at André Elali Law Firm.
Founding partner. Specialist and Master in Tax Law from UFRN. He has chaired the OAB / RN Tax Law and Taxpayer Defense Committee for 10 years. He is a Professor of Tax Law at UNI-RN and UFRN undergraduate and postgraduate programs.