Goodwill is transferred between legal entities that are members of the same economic group, and amortization quotas can be deducted from the basis of calculation of Corporate Income Tax (IRPJ) if the goodwill has been regularly constituted in a transaction between legal entities independently. This was the understanding signed by the 3rd Chamber of the Administrative Council of Tax Appeals (Carf) in a ruling published on Thursday (11/10).
According to the counselors, article 7 of Law 9.5321997, which amends the tax legislation, allows deduction of goodwill due to results of future years only when the legal entity absorbs the equity of another in cases of spin-off, merger or incorporation. In the case under analysis, the corporate transaction was legitimate and covered by the legal assumptions regarding the transfer of goodwill.
“The use of a vehicle company and a reverse merger by itself does not invalidate the corporate transactions that transferred the original investor’s goodwill to the investee, being directly linked ideologically to a business purpose. Having verified the legal conditions, especially the asset mix between investor and investee, the tax amortization of goodwill must be allowed”, states the judgment.
The analysis was based on a tax assessment notice for the release of IRPJ and CSLL, accrued interest and fines of 150% and isolated, written against outsourcing company and technology due to the non-addition of the amounts related to goodwill amortization of acquisitions of evaluated investments and unauthorized exclusions / offsets in the calculation of the real profit (exclusion of goodwill) in the calendar years 2009 and 2010.
By a majority, the collegiate also understood that article 24 of the Law of Introduction to the Norms of Brazilian Law (LINDB) was not applicable. “LINDB is a valid, effective and effective standard whose application depends, in particular, on the adequacy of the concrete case to its normative forecasts, and it is up to Carf to apply it in appropriate cases. However, article 24 of the law does not apply in the case of revision of an individual act, constitutive of the tax credit, in the context of the release by homologation, as it is applicable only in the cases in which the revised act is of an administrative nature”, states the judgment.
Possibility of application
The rapporteur, counselor Amélia Wakako Morishita Yamamoto, who had a vanquished vote, understood that Article 24 of the LINDB should be applicable. For her, the initial understanding is that there is possibility of application in cases judged by Carf, including in this.
“The aim is to ensure legal certainty and acquired right. In the present case, without understanding the majority understanding at the time of the facts, my understanding is that the goodwill constituted, originated in the forms placed would be fully valid, others that for other reasons, proof of value would not be acceptable. Thus, in a first approach it seems to me applicable”, he said.
In the winning vote, counsel Roberto Silva Junior pointed out that there has never been a dominant and stable jurisprudence admitting the deductibility of goodwill amortization, even if, if there were jurisprudence with such characteristics, there would not be as many processes of goodwill in Carf.
“Although the law does not say what should be understood by majority rule, it seems to me that if the scope of the law is to protect the taxpayer’s trust and good faith, jurisprudence can not be vacillating, nor formed by a narrow majority; on the contrary, it must be dominant and peaceful because only such case-law would be capable of generating in the taxpayer the certainty that acting in conformity with it would be protected by the current legal system and therefore safe from what would not be sanctioned”, he explained.
Counselor Carlos Augusto Daniel Neto stated that LINDB itself provides guidelines in determining that, in the application of the law, the judge will attend to the social purposes to which it is directed and to the demands of the common good. “This does not mean that the intention of the legislator should overlap with the legal text and its own meaning acquired within the legal system, but rather that, in case of doubt about this, recourse to the purpose that was intended to be achieved admitted to clarify the content and scope of the standard”, he explained.
According to the counselor, this structure is clearly not compatible with the literality of article 24 of the LINDB, because it is a private act and not an administrative act.