The judgment of one of the most relevant topics for tax law is on the STF's agenda and perhaps the most important of recent years. The discussion involves res judicata and STF decisions about tax payment (they are 881 and 885 general repercussion).
The thing deemed material occurs when the decision of merit is no longer subject to appeal by the parties, making the decision unchanging and undisputed. In other words, the institute aims to guarantee legal certainty and occurs with the res judicata of the decision, that is, it represents a 'final point' of the discussion, admitting rare exceptions via termination action.
Tax issues have a peculiarity, as they often involve a continuative (or continuous treatment) relationship in which occurrences are repeated, ie generating facts repeat indefinitely (monthly, annually, etc.). This is what happens, for example, with IRPJ, CSLL, IPI, ICMS and ISS.
and what is at stake in the STF trial? The Supreme Ministers are deciding whether the previous individual court ruling was res judicata by authorizing the non -payment of a tax may be affected by the subsequent judgment of the Supreme Court that declares the constitutionality of the collection. Currently, when this occurs, the Union needs to file a termination action.
The theme was trial provided for in the Virtual Plenary to take place from 09/30/22 to 07/10/22, but on 10/03/22 Minister Gilmar Mendes asked for view and the trial was suspended. On 08/11/2022 the process was returned and included in the agenda scheduled for 18/11/2022 until 11/25/2022.
Theme 881 already has 6 votes favorable to the thesis that the supervening decision of the Supreme Court that declares constitutional the collection of the tax automatically interrupts the effects of the decision -making decision favorable to the taxpayer.
The theme is complex (from the legal point of view) and brings reflexes to the taxpayers and the tax authorities. If the final decision is in this regard, the Supreme Court should make clear the moment that its decision is able to cease the effectiveness of the res judicata (date of the judgment, date of publication of the minutes, date of res judicata or other time) and It also needs to define whether the effects of your decision apply to future generating facts (after the STF decision) or if you can affect past acts/facts.
Consolidated the understanding of the Supreme Court for the automatic loss of the effectiveness of the previous decision, it is certain that the opposite should also be valid. In other words, if the taxpayer has an unfavorable definitive decision and the Supreme Court will later recognize the unconstitutionality of the tax, the new decision must also be applied automatically and authorized the non -payment of the tax.
The Carpena Advogados team will continue to follow the theme and are available to answer any questions on the subject.
