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STF resumes judgment on taxpayers who obtained the right not to pay tax


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In its first week of judgments in 2023, the STF (Federal Supreme Court) intends to analyze actions that may affect a number of taxpayers who obtained, through final court decisions (when there is no longer any appeal), the right not to pay some tribute.

Cases will be impacted by the judgments in which, after these decisions, the Supreme Court itself understood that the taxes were constitutional and should be collected.

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As of this Wednesday (1st), the Supreme Court should define the so-called “res judicata limit in tax matters”. The trials had already started in a virtual plenary, a system where ministers cast their votes, but were taken to the physical plenary by Minister Edson Fachin.

On the one hand, taxpayers argue that the effects of decisions they had obtained in court —for non-payment of amounts— continue even after the Supreme Court declared the collection of taxes constitutional.

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On the other hand, there is the understanding that these decisions are no longer valid after the understandings of the STF.

For example, one of the appeals that reached the STF was filed by the Union against a textile industry that obtained a court order, final and unappealable in 1992, to stop paying CSLL (Social Contribution on Net Income).

The decision that exempted the industry from this collection was taken by the TRF-5 (Federal Regional Court of the 5th Region).

However, in 2007, the Supreme Court decided that this tax was constitutional when judging an ADI (direct action of unconstitutionality).

In the appeal against the industry, the Union argued that the res judicata in tax matters “may be relativized due to the supervenience of new normative parameters for the requirement of the tax” or, even, “due to the supervenience of the decision of the STF that it considers constitutional the normative diploma considered unconstitutional by the final and unappealable decision”.

The STF intends to define whether, in final and unappealable cases throughout the country, taxpayers must pay this type of tax and, if so, at what time these amounts can be charged.

This is the first of the major cases in the tax area that are pending decision in the STF and that should be analyzed this year. There is no estimate of the impact of these decisions on public finances or on taxpayers.

These are two actions of general repercussion —that is, that affect other similar processes— to be judged by the Supreme Court on the subject of res judicata.

“The Supreme Court will decide if, when you had a particular decision, but then there was a decision in the opposite direction, you had to collect the tax immediately or in advance”, explains Bianca Xavier, professor of tax law at FGV (Fundação Getulio Vargas). River.

According to her, if the understanding prevails that the tax should be collected from the publication of the minutes of the Supreme Court’s decisions on the subjects, “taxpayers will have to be extremely attentive”.

In one of these actions, the score was 7 to 0 so that decisions taken in certain actions, such as ADI (direct action of unconstitutionality) or ADPF (allegation of non-compliance with a fundamental precept), end the effects of these other final and unappealable decisions taxpayers to pay taxes.

That is, the court already has a majority to apply this understanding. There are divergences, however, regarding the period in which this understanding can be applied.

This action is reported by Minister Edson Fachin and already has the votes of Luís Roberto Barroso, Rosa Weber, Alexandre de Moraes, Cármen Lúcia, Gilmar Mendes and Dias Toffoli.

Ministers André Mendonça, Kassio Nunes Marques, Luiz Fux and Ricardo Lewandowski have not yet voted. Members of the court who have already voted can also change their position.

In the other action, which deals with decisions taken in other types of proceedings by the Supreme Court, the vote is 5 to 0, also in favor of ending the effects of previous decisions.

The process is reported by Minister Luís Roberto Barroso and Rosa Weber, Dias Toffoli, Gilmar Mendes and Alexandre de Moraes have already voted.

This year, another tax issue should also be judged by the STF: the dispute over the collection of the differential ICMS rate (Difal), provided for by law and which allocates the tax corresponding to the difference in the rate to the state of destination of the goods. of the home state.

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