STF forms majority to break tax decision

The ministers of the STF (Federal Supreme Court) formed a majority this Thursday (2nd), in two related cases, so that the effects of final and unappealable judgments on tax matters lose effect when the STF subsequently decides otherwise.

This type of situation, which represents a “break” of previous definitive decisions, is analyzed in two actions with reports by ministers Luís Roberto Barroso and Edson Fachin. They agree that the effectiveness of the sentence ceases when the STF judges the tax matter in the opposite direction.

In one of these actions, there was already a majority to apply this understanding to certain situations (direct action of unconstitutionality or claim of non-compliance with a fundamental precept). In the other, which analyzed the application of understanding in other types of process, not yet.

In the two cases analyzed by the STF, the Union appealed against decisions that, in the 1990s, considered unconstitutional the law that established the CSLL (Social Contribution on Net Income) and gave two companies the right not to pay the tax. The Union’s argument is that, since 2007, the STF declared the constitutionality of the law that instituted the contribution and therefore the charge could be made.

Now, the understanding is moving towards a pro-Union consolidation. But there are still disagreements in the court on certain aspects arising from the trial. For example, about the timeframe for resuming tax collection.

One of the disagreements among the ministers is that, for Barroso, there is no need to file a rescission action to resume charging. Ministers Gilmar Mendes, André Mendonça, Alexandre de Moraes, Dias Toffoli and Minister Cármen Lúcia followed this trend.

Minister Fachin, on the other hand, argues that it would be necessary to file a rescission action so that the new understanding ceases the effectiveness of actions with final sentences.

Thus, he proposes that the decision, in both cases, only have future effects, from the publication of the minutes of the judgment of the two extraordinary appeals under analysis. This understanding was followed by ministers Nunes Marques and Luiz Fux.

The trial will continue next week (the 8th) to discuss points like this. Ministers Rosa Weber and Ricardo Lewandowski are the ones who still need to speak.