The 2nd Chamber of the 2nd Section of the organ decided to return the cases to a new trial by the Regional Judgment Office (DRJ) to clarify some points.
Two points are in judgment, in which the Revenue charges IRRF on betting prizes in contests that occurred between 2006 and 2007 and 2009 and 2010. The inspection understands that all bet must be taxed. The Jockey Club claims that bets on horse races have a different tax law than those contests, such as lottery prizes, which have IRRF (proceedings nº 12448.731537 / 2013-78 and 12448.730837 / 2012-59).
The case is unprecedented, as Jockey Club lawyer Carlos Henrique Bechara of the Pinheiro Neto office said in the oral defense during the session. "This assessment is unbelievable because, in fact, this kind of taxation is impossible in the general betting environment. It's like this all over the world," he said.
According to the lawyer, it is a bet apportionment type, which is different from contests. In races, people bet on the horses, with an amount of money is established depending on the total bettings and it apportioned on the same day to the winners. "The prize does not accumulate and it does not pass to the next day, the accounting is closed daily and the money is prorated," said the lawyer.
In draws, like the Mega Sena, the prize accumulates. In Jockey, conducting competitions is an exception, according to the lawyer. There is an annual event, the Brazilian Grand Prize, linked to the federal lottery, with bigger prizes and that would be subject to taxation, but that would be different from the activity carried out day by day, according to Bechara.
The basis for calculating the assessments is unbelievable, said Bechara. The prosecutor took the whole betting movement and taxed, without taking the cost off. The amount of the assessment was not disclosed but is "very high," according to the lawyer said at the session.
Law No. 7.291 of 1984 deals with turf activity (horse racing), and does not provide for taxation, as well as the Income Tax regulation, according to the lawyer. In 1982, a normative opinion of the Revenue predicted that the apportionment activities are exempt. In 1992, in a specific consultation solution made by the Jockey Club, the Revenue replied that prize in the contest must be taxed by the IRRF, and those obtained by apportionment will not be taxed.
The rapporteur for the proceedings in CARF, counselor Martin da Silva Gesto, representative of the taxpayers, suggested that the trial of the DRJ be annulled and a new one carried out. For the rapporteur, some points were not clear in the decision.
In addition, Silva Gesto requested that a diligence should be carried out to verify whether the 1992 consultation solution was amended. In the trial held in the DRJ, this doubt also arose and was not clarified, according to the counselor Ronnie Soares Anderson, representative of the Treasury. He therefore accompanied the rapporteur in the decision to take the process again to trial.
By a majority, with an overdue counselor, it was decided to declare the decision of the DRJ null and return the case to retrial. The counselors also requested that it should be verified whether the consultation solution was subsequently changed. After the new trial in the DRJ and the clarifications, the case may return to CARF.
The Attorney General of the National Treasury did not make oral defense in the session.
Source: GMB / Beatriz Olivon | Valor