Carf disqualifies company from Simples for PIS/Cofins credit fraud

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The Administrative Council of Tax Appeals (Carf) punished a company that received orders from another with disqualification from Simples Nacional, when, in fact, the two were the same, separated only on paper. The company that received the orders opted for Simples, and, in this way, the other company, which ordered, obtained non-cumulative PIS and Cofins tax credits. The ordering company was ordered to pay the tax with a qualified fine.


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Carf disregards company in national simple after illegal simulation.
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The counselors understood that there was B2B Lead no difference between the two companies — in reality, they belonged to the same people and had the same operational framework.

The 3rd Panel of the Superior Chamber of Tax Appeals analyzed the infraction notice in relation to the assessment of non-cumulative PIS and Cofins, as a lack or insufficiency in the collection of contributions was found, with a request for a qualified fine.

The defendant, a footwear manufacturer, used a company opting for Simples to create a favorable legal situation, through simulation, to pay fewer social security contributions and also generate non-cumulative PIS and Cofins credits.

The understanding of the rapporteur, advisor Jorge Olmiro Lock Freire, prevailed. For him, there is confusion between the assessed taxpayer and the service provider company.

"So it can be concluded that they are not independent companies, as their separation is a merely formal fiction, and in fact they are only a single entity, with the service provider being, in reality, a branch/department of the taxpayer, with the exclusive purpose of benefit from the favorable tax/social security treatment applied to micro and small companies", he says.

This is because, according to the counselor, the payment of the payroll, indirectly, by the taxpayer cannot generate credit rights. For him, there is no doubt that the case is “a gross fraud”.



"It is clear, therefore, that the provision of industrialization services carried out by the individual company for the assessed taxpayer is an agreement between the two to simulate the existence of a legal transaction between two legal entities, but which in reality makes up a single entity, the effect of which was, from the perspective of PIS and Cofins, result in the creation of favorable credit for contributions to the taxpayer, in order to reduce the amount payable of the contribution", he explains.

In the assessment of tax expert Fabio Calcini , partner at the firm Brasil Salomão e Matthes Advocacia, in this case, the Superior Chamber decided to disregard the PJ in Simples Nacional.

"Since several elements were identified in the sense that this had no effective activity in fact, since there was total confusion of assets with the contractor, there were family ties, common activities, among other aspects. For this reason, the credits were disallowed of the service provider", he says.