The ministers of the Federal Supreme Court (STF) determined that taxpayers with a favorable final decision allowing non-payment of CSLL will be required to pay the tax again since 2007, the date on which the Court recognized the constitutionality of the contribution in the judgment of Direct Action of Unconstitutionality 15. Understand below how the judgment of the tax res judicata was in the STF.
The decision is the result of the conclusion of the trial, this Wednesday (2/8), of the two extraordinary appeals that discuss the limits of res judicata in tax matters. These are RE 949.297 and RE 955.227, listed in Themes 881 and 885 of the general repercussion.
The ministers unanimously ruled that a taxpayer who has obtained a favorable court decision that has become final and binding allowing non-payment of a tax automatically loses his right in the event of a new ruling by the STF that considers the collection constitutional. The understanding is that the cessation of the effects of res judicata is automatic in the event of a new ruling by the STF, and it is not necessary for the Union to file a review or rescission action.
However, the ministers denied, by 6 to 5 votes, the request for modulation of effects made by the taxpayers. The request was for today's decision to take effect as of the publication of the minutes of the judgment on the merits of the appeals. In practice, this would allow the Union to collect the tax only as of 2023. With the denial, the collection could be retroactive to 2007.
On the other hand, by 6X5 votes, it was agreed that, if the STF rules that a tax is constitutional, the collection must respect the annual and ninety-day periods, depending on the tax, to come into effect. In the case of CSLL, for example, only the ninety-day period applies.
The ministers established the following thesis, proposed by Minister Luís Roberto Barroso:
“1. The decisions of the STF in incidental control of constitutionality, prior to the establishment of the general repercussion regime, do not automatically impact the res judicata that has been formed, even in tax legal relations of successive treatment.
2. Decisions handed down in direct action or in the context of general repercussions automatically interrupt the temporal effects of final decisions in the aforementioned relationships, respecting non-retroactivity, annual prior notice and ninety or ninety-day prior notice, depending on the nature of the tax”.
The ministers' votes on res judicata in the tax system at the STF
Last week, the justices had already formed a 9-0 vote in favor of automatically breaking the effects of res judicata in tax matters. However, the judges disagreed on the modulation of effects. Three justices – Edson Fachin, Nunes Marques and Luiz Fux – voted for modulation, that is, for the decision to take effect as of the judgment minutes of the current trial. Thus, the taxpayer would only have to pay the tax from now on. The others understood that payment should begin in 2007 – the date on which the STF ruled that the CSLL was constitutional.
At the opening of the session this Wednesday, Minister Dias Toffoli, who was previously against modulation, changed his vote and began to support Minister Edson Fachin, for the production of effects from 2023, that is, after the conclusion of the judgment of res judicata.
Justice Ricardo Lewandowski, in turn, presented his vote this Wednesday and was also in favor of modulation. The judge showed concern about the protection of res judicata. For him, non-modulation means flexibility of res judicata. Lewandowski also recalled that, at no point in the discussion of ADI 15 was the removal of res judicata mentioned as part of the effects of the decision.
“It is not possible to now, abruptly, demand this understanding from taxpayers,” argued the minister. With this reasoning, the minister fully agreed with the vote of minister Edson Fachin, rapporteur of one of the extraordinary appeals under analysis.
Justice Rosa Weber, who also presented her vote on Wednesday, agreed with Justice Luís Roberto Barroso in favor of non-modulation, so that the collection of taxes would be valid from 2007 onwards. In the judge's opinion, modulation would bring greater legal uncertainty. The justice argued that it is necessary to protect tax equality. Rosa also argued that non-modulation of the effects of the decision does not break the legitimate expectations of taxpayers because since 2007 there has been a decision by the Supreme Court understanding the constitutionality of the CSLL.
In addition to Rosa Weber and Luís Roberto Barroso, the ministers opposed to modulation were Gilmar Mendes, Cármen Lúcia, Alexandre de Moraes and André Mendonça.