In a session on February 2nd, the STF (Federal Supreme Court) decided that the effects of a final sentence on continued tax matters lose their effects when there is a subsequent judgment to the contrary by the last instance of the Brazilian judiciary, which became one of the main tax debates of 2023.
The judgment of REs (Extraordinary Appeals) 955227 – Topic 885 and 949297 – Topic 881, with general repercussions, continues with the discussion on the timeframe for resuming the collection of taxes. Now, ministers must judge whether it is necessary to observe the principles of annual and ninety-year precedence, in addition to the establishment of theses of general repercussion, as published on the STF portal.
In both situations, the Union appeals once morest decisions that, in the 1990s, judged 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 argues that the collection might be resumed since 2007, when the judgment of the ADI (Direct Action of Unconstitutionality) 15 took place, in which the Court changed its understanding and declared the constitutionality of the law that instituted the contribution.
Justices Luís Roberto Barroso and Edson Fachin, rapporteurs of RE 955227 – Theme 885 and Justice RE 949297 – Theme 881, respectively, agreed that the effectiveness of the final sentence ends when the STF judges the tax matter in the opposite direction. Despite this, ministers have different understandings regarding the setting of the time frame.
“Law is not watertight, it is dynamic. Changing interpretation of legislation has always existed and always will,” says Dr. Vanderson Ferreira, tax lawyer at Ferreira & Associados.
“Notwithstanding this, it is curious that there is legal certainty in human relations, especially in relations between tax authorities and taxpayers. This is because it is not possible to create business environments where uncertainty resides: the entrepreneur needs to trust the rules and legal decisions of the State”, articulates the specialist lawyer.
Ferreira also points out that, in his view, in order to live with judicial decisions that imply mitigation of res judicata – the right acquired from a judicial decision without the possibility of appeals – in matters of a tax nature, it is essential to edit of legal norms, by the National Congress, with a view to re-establishing a scenario of greater predictability, legal certainty and respect for other constitutional principles.
Still according to the tax lawyer from the Ferreira & Associados office, the decision requires that the entrepreneur, especially the one who holds a successful thesis once morest the State in tax matters, always have the support of a tax lawyer, since any change of understanding in the STF will impact, including, once morest those who have a favorable final judgment.
“If there is a change in favor of the taxpayer, even if he has an unfavorable court decision, he will be benefited”, he adds.
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