The Brazilian Industry Confederation (Confederação Nacional da Indústria – CNI) filed Direct Action for Unconstitutionality n. 4.905 that seeks to dismiss the applicability of article 74, paragraphs 15 and 17, of Law n. 9.430/1996, introduced by Law n. 12.249/2010, which establish the application of an isolated penalty to 50% on the amount of the credit object of the reimbursement (ressarcimento) claim that was denied, or in the case of credit offsetting that is not ratified by the Brazilian Revenue Service.
The CNI alleges that these provisions contain punitive rules against the taxpayer who claims reimbursement or offsetting in good-faith, within the limits of the regular exercise of a right, who has his claim denied within the administrative sphere. The imposition of the fine would thus violate the fundamental right to claim to public authorities (article 5, item XXXIV, letter a, of the Brazilian Constitution); the right to the adversary system and to full defense (article 5, item LV of the Brazilian Constitution); prohibition to use taxes with confiscation effect (article 150, item IV, of the Brazilian Constitution); and the principles of reasonability and proportionality.
It must be pointed out that paragraph 16, article 74, dealing with the application of the 100% fine in the case of false statement submitted by the taxpayer was not questioned in this Direct Action for Unconstitutionality.
(STF News, Feb. 01.2013. Available at: <http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=229737>. Access in: Feb. 2013).