Compensação tributária e incidência do imposto sobre a renda

Abstract

The present work is based on the disagreement about the correct moment of incidence of income tax in cases of administrative compensation of the amounts collected incorrectly, recognized through a final judicial decision. Thus, firstly, we sought to understand the entire matrix and structure of the tax on income and earnings, which should be understood through the lenses of income and earnings, as well as the elements that characterize its taxable event, embodied in legal and economic availability. Understanding those concepts, the work focuses on the possibility of judicial recognition, especially by means of a writ of mandamus, of the right to offset taxes unduly collected with future debts with the Federal Revenue, through the mandatory procedure of the Electronic Request for Refund, Refund or Reimbursement and Declaration of Compensation, a necessary procedure to enable the taxpayer's credit to be able, at the appropriate time, to be offset against future debts. Therefore, in order to make it possible to understand which is the effective matrix rule of incidence of income tax and the actual moment of appearance of the taxable event, we sought to deepen what is the legal norm, that is, the necessary interpretation so that the legal text becomes a legal norm, based on the Federal Constitution, the National Tax Code and even economic concepts. In view of everything studied, the inevitable conclusion was reached that at the time of recognition of the credit right by means of a final and unappealable judicial decision, there is no availability of the amounts to the taxpayer and, therefore, there is no occurrence of the taxable event income or earnings, since the right to value was exclusively recognized. Thus, the event that generates income tax or earnings will only occur when the exercise of its compensatory right, when there will be an unconditional disposition of the amounts, or, in other words, when the taxpayer will have the availability of his credit, which will be the moment when the compensation will be carried out