In that context, there were significant discussions last
year pointing out the nullities in some judgments rendered by
the CARF, which judges proceedings involving tax issues in
Brazil before the federal executive branch.
Dissatisfied with the judgments before CARF, some taxpayers
seeking resolution before the judiciary branch obtained
favourable decisions to cancel tax claims upheld in a judgment
decided by the casting vote at the CARF. Such decisions,
obtained at the judiciary branch, determined the stay of
proceedings at CARF in cases where the CARF Internal
Regulations had not been fulfilled, among other reasons.
As long as there are no legislative changes in the CARF
structure, which is the main administrative court in Brazil, we
need to focus on the present moment. The aim of this article is
to strengthen CARF’s performance, so that it will
once again be the main judge body in the cases involving
What is proposed with the present article is that the CARF
should not become a mere "jurisdiction of transition" to the
judiciary, maintained at the cost of significant funds from the
For that purpose, it is important to remember that the
Brazilian Constitution states that "no one shall be deprived of
freedom or of his assets without the due process of law"
(Brazilian Federal Constitution, Article 5, LIV) and
which ensure compliance, in the administrative proceeding, with
the "broad defence" and the "right to adversary proceeding"
(Brazilian Federal Constitution, Article 5, LV). Based on these
provisions, it can be noted that the constitutional
configuration attributed to the administrative proceeding,
especially to the tax proceeding – which has the power
to expropriate part of the property of taxpayers –, is
very similar to the legal proceeding.
It is probable that many of the current problems identified
in the judgments rendered by the CARF would be resolved if the
fundamental guarantees were actually complied with in
For that purpose, it is crucial that the council members of
the tax authorities and of the taxpayers, in the exercise of
the duties as administrative judges, adopt some precautions in
order to ensure impartiality in the judgments.
In exercising these duties, the CARF council members are
there to judge and, accordingly, they should not act as
defenders of the parties, who are already advised by
prosecutors of the national treasury and by lawyers duly
enrolled with the Brazilian Bar Association.
Regarding the position of the judge in the judgment, the
opinion of jurists is that "the judge, because of his duty of
impartiality, is placed between the parties, but equidistant
from them: if he hears one of them, he shall not fail to hear
the other (...) Only by summing up the partiality of the
parties (one representing the thesis, the other, the
antithesis) the judge may embody the synthesis in a dialectic
process." (Cintra, Grinover e Dinamarco, Teoria Geral do
Processo, 30th Ed., page 74).
In our opinion, without going into the merits of the current
structure of the body, we understand that isonomic treatment
between the parties to the litigation is an essential condition
to ensure impartiality.
Therefore, situations like those recently disclosed by the
press, whereby a former council member provided his opinion
during the judgment session of an appeal filed against an
appellate decision to which this same former council member was
the reporting judge at a lower court of the CARF itself only
distances the court from its true purpose.
It cannot be supposed that any privileges granted to the
national treasury in the administrative judgments could be
justified by the alleged 'principle of supremacy of the public
In fact, anyone who practices tax litigation –
either in the administrative jurisdiction or in the judiciary
– has certainly faced decisions and arguments of the
tax authorities that seek to justify the maintenance of a given
tax requirement based on the so-called 'principle of supremacy
of the public interest’.
However, the application of this principle could never
justify any mitigation of the fundamental rights and
guarantees, given that there should be no superior public
interest than the respect for the constitutional rules and the
When there is any type of favouritism to any of the parties,
as mentioned above, the impartiality that characterises the due
process is impaired.
In summary, the administrative proceeding is a condition of
validity of the tax assessment. In turn, the validity of the
administrative proceeding is indissociably conditioned to
compliance with the due process. In this line, the Federal
Supreme Court and the Superior Court of Appeals have repeatedly
adopted the position of declaring the nullity of appellate
decisions rendered in violation of the due process, such as,
for example, in MS No. 11.766/DF and in RMS No. 26.029/DF,
reported by Justice Carmen Lucia.
This article was written by João Marcos Colussi
and Gabriel Mendes Gonçalves Issa of Mattos Filho, Veiga
Filho, Marrey Jr e Quiroga Advogados.