COMO PENSAM OS CONSELHEIROS: UMA ANÁLISE DO PERFIL DAS DECISÕES ADMINISTRATIVAS NO ÂMBITO DO CONSELHO ADMINISTRATIVO DE RECURSOS FISCAIS (CARF)

Abstract

To understand the decision criteria in brazilian administrative tax court, called CARF, this article refers Richard Posner in “how judges think”.  Three of the nine teories presented by the author, are here considered the most important: the Attitudinal Theory, the Strategic Theory and the Legalist Theory; and, by analogy, the opposition between judges appointed by Democratic or Republican Presidents, is compared to the dicotomy between members of the adminstrative tax court, called advisers, appointed by the tax administration and by tax payers representative entities.  To test these theories of decision criteria classification, were taken into account decisions in favour of the tax adminstration and in favor of the tax payer, considering unanimous decisions, majority decisions and decisions taken, in equality of votes, by the court´s president´s casting vote, considering that the president is allways a member appointed by the tax administration.  The data survey was restricted to decisions taken in 2016, because they are posterior to the present CARF organization and previous to the casting vote new implementation, introduced by act 13.988, 2020.  The percentage of decisions in favour of the tax administration, taken by the president´s casting vote, regarding to the total amount of decisions in the period, can reveal the importance of Attitudinal Theory in decision making, in comparision to the Legalist Theory.  However, the information gathered is not clear enough to demonstrate the relevance of Strategic Theory, in the decision making process.