The 3rd Federal Court of São Bernardo do Campo, in São Paulo, decided that there is no time limit for the use of tax credits through the compensation institute.
The decision, by judge Ana Lucia Iucker Meirelles de Oliveira, guarantees the right of the plaintiff, a company in the chemical products sector, to fully use its tax credit without a time limitation.
In the proceedings, the taxpayer stated that he had qualified, in April 2019, for the offsetting of more than R$15 million in tax credits, but that he was unable to use the full amount, because the debts represented only R$201 million of the total.
The company highlighted that Normative Instruction RFB No. 2,055, of December 2021, and the statement of Consultation Solution-COSIT 382/2014, established a five-year prescriptive period for the right to compensation – which would not be possible to comply with.
According to the company, the restriction constitutes “blatant misappropriation by the public entity and undue harm to a clear and certain right”. For the plaintiff, the authorization of the credit should interrupt the statute of limitations – that is, it could use the value of the credits until it ran out.
For the Tax Authorities, the five-year term remains valid, even with the offsetting procedure, which would cause the credit to expire.
In the decision, the judge pointed out that the case law of the Superior Court of Justice (STJ) consolidates the understanding that the term “runs until the exercise of the repetitive right by the taxpayer and not until the satisfaction of that right”.
She reinforced that, in the judgment of REsp 1,469,954, the STJ defined the time limitation provided for in the National Tax Code is to “claim said right (compensation), and not to realize it in full”.
The judge decided that “the claim must be accepted, since the compensation was initiated within the five-year period and must be extended until the date on which it is completed, with the total value of the credit, not limited to the five-year period to end, under penalty of rendering the right ineffective”.
The taxpayer's defense was carried out by the Tax Law Department of Valentir Sociedade de Advogados. The case was tried under number 5004962-44.2023.4.03.6114.