Brazil vs Petroleo Brasileiro S.A., March 2026, CARF, Case No 16682.721153/2024-88
Table of Contents
Case Information
Court: Conselho Administrativo de Recursos Fiscais (CARF), 1ª Seção, 4ª Câmara, 1ª Turma Ordinária
Case number: 16682.721153/2024-88
Citation: Acórdão 1401-007.865
Applicant: Petroleo Brasileiro S A (PETROBRAS)
Respondent: Fazenda Nacional
Jurisdiction: Brazil (federal administrative tax tribunal)
Judgment date: 27 March 2026
Judgment Summary
The case concerns assessments of Imposto sobre a Renda de Pessoa Jurídica (IRPJ) and Contribuição Social sobre o Lucro Líquido (CSLL) for the calendar year 2019, arising from two distinct infringements identified during a tax inspection of PETROBRAS.
The first infringement was the disallowance of charter-fee expenses relating to oil-platform import-of-rights contracts concluded with related parties abroad. The tax authority rejected PETROBRAS's transfer-pricing methodology under the Método dos Preços Independentes Comparados (PIC) and recalculated the reference price by using the initial contractual term and a specific internal rate of return (TIR) as additional comparability-adjustment factors.
The second infringement was the disallowance of an accelerated-depreciation deduction (relating to Platform P-77) that PETROBRAS had applied in excess of the amount recorded in its accounts, which also gave rise to isolated penalties for failure to pay monthly IRPJ and CSLL estimates.
The aggregate historical value of the tax credit constituted by the assessments was R$ 1.244.259.253,72.
The Delegacia de Julgamento da Receita Federal do Brasil 09 (DRJ09), through Acórdão n.º 109-024.130, partially upheld PETROBRAS's challenge. It cancelled the transfer-pricing adjustment on the ground that using the initial contract term as a proxy for the investment-return period lacked legal support and was methodologically unsound. It maintained the isolated penalty for unpaid monthly estimates.
Because the credit exonerated exceeded the threshold set by Portaria MF n.º 2/2023, an ex officio appeal (Recurso de Ofício) was lodged, returning the exonerated portion to CARF. PETROBRAS also filed a voluntary appeal (Recurso Voluntário) challenging the isolated penalty.
CAR F's 1ª Turma Ordinária (a) unanimously dismissed the Recurso de Ofício, upholding the cancellation of the transfer-pricing adjustment, and (b) by casting vote (voto de qualidade) dismissed the Recurso Voluntário, upholding the isolated penalty. Three councillors (Daniel Ribeiro Silva, Andressa Paula Senna Lísias and Luciana Yoshihara Arcangelo Zanin) dissented on the voluntary appeal and would have cancelled the isolated penalty.
Background
PETROBRAS concluded contracts for the charter (afretamento) of offshore oil platforms with related-party entities domiciled abroad. For transfer-pricing purposes it applied the PIC method, using as its comparability-adjustment factor the ratio of the daily charter rate to the replacement value of each platform (a ratio averaging 0.056%). It applied that ratio to the replacement values of the platforms used in related-party contracts for 2019. Because the contracted rates were in every case below the resulting reference price, PETROBRAS deducted the full charter expense in computing IRPJ and CSLL.
The tax authority accepted the PIC method and the daily-rate-to-replacement-value ratio as a starting point, but concluded that those factors alone did not achieve the comparability required by law. Drawing on information supplied by PETROBRAS itself, the inspectors found that the daily charter rate also reflected (i) the expected rate of return on the charterer's investment and (ii) the initial contractual term, because the charterer needed to recover its capital within the contract period. On that basis the authority recalculated the reference price by incorporating the initial contract term and a specific TIR, disregarding contractual extensions, and comparing only contracts with equivalent initial terms. The recalculated reference price exceeded the contracted price, producing a partial disallowance of charter expenses.
Separately, PETROBRAS acknowledged that it had applied an accelerated-depreciation deduction in an amount exceeding the figure recorded in its accounts for Platform P-77. It paid the resulting IRPJ and CSLL principal and the annual-adjustment penalty (multa de ofício) with the statutory reduction. The tax authority additionally levied an isolated penalty of 50% on the value of the monthly estimate payments that had not been made.
The total historical amount of the assessments was R$ 1.244.259.253,72.
Core Dispute
Two separate issues were contested before CARF.
First, on the transfer-pricing question, the central dispute was whether the tax authority could lawfully use the initial contractual term as a proxy for the expected investment-return period when constructing a comparability adjustment under the PIC method. PETROBRAS argued that, in the oil-platform market, investment recovery occurs over the full economic life of the asset, which commonly exceeds the initial contract term because extensions are routine. It contended that the initial term was not a permissible adjustment element under articles 9 and 10 of Instrução Normativa RFB n.º 1.312/2012, and that the authority had not demonstrated any concrete correlation between that term and the actual return period. The Fazenda Nacional maintained through the Recurso de Ofício that the DRJ09 had been wrong to cancel the adjustment.
Second, on the penalty question, PETROBRAS argued in its Recurso Voluntário that the simultaneous imposition of the isolated penalty (multa isolada) for unpaid monthly estimates and the annual-adjustment penalty (multa de ofício) constituted double punishment (bis in idem) and violated the principle of consunção (absorption). It invoked the ratio underlying Súmula CARF n.º 105 and STJ case law. The Fazenda Nacional contended that both penalties were lawful and independent following the amendment made by Medida Provisória n.º 351/2007, converted into Lei n.º 11.488/2007, to article 44 of Lei n.º 9.430/1996.
Court Findings
On the transfer-pricing issue, CARF unanimously affirmed the DRJ09's decision. The tribunal found that the tax authority's premise, namely that the charterer would recover its entire investment within the initial contractual term, was not supported by the evidence in the record. The platforms operated for long periods beyond their initial contractual terms, and the contracts expressly provided for automatic renewal. The authority itself had stated in its report that it was not asserting that full investment recovery occurred within the initial term, which undermined its own methodology.
The tribunal further held that the initial contractual term is not a recognised comparability-adjustment element under articles 9 and 10 of IN RFB n.º 1.312/2012. Article 9, paragraph 1, item I, refers only to 'prazo para pagamento' (payment term) and not to contract duration, and article 10 is confined to differences of a physical nature or in the content of the goods or rights being compared. By incorporating the initial contract term into the adjustment formula without demonstrating its correlation with the actual investment-return period, and by substituting the ROACE indicator used in the 2018 assessment with a TIR while retaining the same flawed premise, the authority committed two errors: applying a criterion not authorised by the applicable regulations, and failing to establish concretely and on a technically sound basis that the initial term could serve as a proxy for the projected return period.
The tribunal cited consistent precedents from the DRJ09 itself (Acórdão n.º 109-021.871, process n.º 16682.721277/2023-82, relating to calendar year 2018) and from the 9ª Turma/DRJ01 (Acórdão n.º 101-025.380, process n.º 16682.721.212/2022-56), as well as CARF Acórdão 1201-007.239 (session of 28 August 2025), all holding that the initial contractual term cannot be used as a proxy for the investment-return period without concrete, technically founded demonstration of that correlation.
On the penalty issue, the majority (voto de qualidade) upheld the simultaneous application of both penalties. The majority held that, from calendar year 2007 onwards, following the amendment made by Medida Provisória n.º 351/2007 to article 44 of Lei n.º 9.430/1996, the two penalties have different legal bases, different triggering facts and different calculation bases. The isolated penalty attaches to the failure to make monthly estimate payments and is calculated on the value of each monthly payment due. The annual-adjustment penalty attaches to the failure to pay the tax as determined in the annual return. The majority found that Súmula CARF n.º 105 does not apply to facts arising after the 2007 legislative amendment.
The three dissenting councillors on this point would have cancelled the isolated penalty on the ground that, by the principle of consunção, the failure to pay monthly estimates is a preparatory step towards the infringement of failing to pay the annual tax liability, and the lesser penalty should be absorbed by the greater. The dissent drew on the reasoning underlying Súmula CARF n.º 105, STF Tema 487, and the view that the 2007 legislative amendment changed the statutory text but not the underlying legal norm.
Outcome
The Recurso de Ofício was dismissed unanimously: the cancellation of the transfer-pricing adjustment stands.
The Recurso Voluntário was dismissed by casting vote (voto de qualidade): the isolated penalty for failure to pay monthly IRPJ and CSLL estimates is maintained alongside the annual-adjustment penalty.
The disallowance of the accelerated-depreciation deduction in respect of Platform P-77 was not in dispute before CARF; PETROBRAS had already paid the related IRPJ, CSLL and annual-adjustment penalty with the statutory reduction, and the originating unit was directed to verify the accuracy of those payments and effect any necessary partial cancellation of the tax credit.
TP Method Highlighted
PETROBRAS applied the Método dos Preços Independentes Comparados (PIC), provided for in article 18, item I, of Lei n.º 9.430/1996, for imports of rights (platform charter fees from related parties abroad). Its comparability adjustment used the ratio of the daily charter rate to the platform replacement value (averaging 0.056%), derived from four contracts with independent parties, applied to the replacement values of the related-party platforms.
The tax authority accepted the PIC method and the daily-rate-to-replacement-value ratio but introduced two additional adjustment variables: the initial contractual term and the TIR expected by the investor. It excluded contractual extensions when computing the adjustment and selected comparable contracts with equivalent initial terms, producing a higher reference price and a consequent partial disallowance of charter-fee expenses.
CAR F upheld the cancellation of the authority's adjusted reference price, finding that the initial contractual term was not a permissible adjustment variable under articles 9 and 10 of IN RFB n.º 1.312/2012 and that the authority had not demonstrated the necessary correlation between that term and the actual investment-return period.
Major Issues / Areas of Contention
- Whether the initial contractual term of oil-platform charter contracts can lawfully be used as a proxy for the investment-return period when calculating a comparability adjustment under the PIC transfer-pricing method.
- Whether articles 9 and 10 of IN RFB n.º 1.312/2012 permit the contract duration to be used as a comparability-adjustment factor, given that article 9, paragraph 1, item I, refers only to 'prazo para pagamento' and article 10 is limited to physical and content differences.
- Whether the tax authority demonstrated a concrete, technically founded correlation between the initial contract term and the charterer's expected investment-return period, particularly in a market where contractual extensions are routine.
- Whether the simultaneous imposition of the isolated penalty (multa isolada) under article 44, item II, of Lei n.º 9.430/1996 and the annual-adjustment penalty (multa de ofício) constitutes double punishment (bis in idem) and violates the principle of consunção.
- Whether Súmula CARF n.º 105, which prohibits concurrent imposition of the isolated penalty and the annual-adjustment penalty, remains applicable to facts arising after the legislative amendment introduced by Medida Provisória n.º 351/2007 and Lei n.º 11.488/2007.
- Whether the tax authority's failure to contest PETROBRAS's transfer-pricing methodology in prior audit cycles constituted a change of legal criterion within the meaning of article 146 of the Código Tributário Nacional or gave rise to legitimate expectation protection.
- Whether the authority's recalculation of the reference price constituted unlawful arbitrary assessment under article 148 of the Código Tributário Nacional or was a permissible determination of the reference price under the transfer-pricing regulations.