The ministers of the Federal Supreme Court (STF) modulated this Thursday (13/) the decision involving the collection of a public security fee in Minas Gerais based on a thesis approved by only six votes. The understanding gives indications of how the proclamation of the result involving ADC 49 may be.
In announcing the result of ADI 4,411, the judges defined that the declaration of unconstitutionality of a public security fee in Minas Gerais for the “potential use” of the fire extinguishing service must take effect from September 1, 2020, when the minutes of the judgment of the decision on the merits were published.
In practice, this means that taxpayers do not have the right to request the refund of amounts unduly paid in the past. The exception is for administrative processes and legal actions pending completion and taxable events that occurred up to that date in relation to which the fee has not been paid.
In an ADI or an ADC, eight votes are required to modulate the effects of a decision. In this specific case, there were nine votes understanding that the decision should be modulated: six based on criteria defined by Luís Roberto Barroso (based on the minutes of the judgment on the merits and with reservations) and another two to approve Alexandre de Moraes' thesis (based on the minutes of the judgment of the declaratory appeals and without reservations). There were another two votes to reject the request for modulation. Despite disagreeing on the terms of the modulation when they judged the appeals in the virtual plenary, the ministers were unanimous in proclaiming the result proposed by Rosa Weber.
If the judges apply this same understanding when announcing the result of the ADC 49 declaratory appeal, whose virtual trial was concluded on the evening of this Wednesday (12/4), the thesis of the rapporteur, Minister Edson Fachin, who also has six votes, will prevail. The judge proposed that the decision that removed the collection of ICMS on interstate transactions between establishments of the same owner take effect from 2024.
Furthermore, according to Edson Fachin's proposal, the states, within the scope of the National Council for Tax Policy (Confaz), will have until next year to regulate the transfer of ICMS credits between establishments with the same owner. If the deadline expires without regulation, the taxpayers' right to transfer the credits will be recognized. In any case, tax experts interviewed by JOTA state that there is no guarantee that this will be the thesis that will be approved in ADC 49 and that it is necessary to wait for the announcement of the result.
In addition to the six votes to approve Fachin's thesis, there are five to validate Dias Toffoli's position. The difference is that Toffoli proposed that the decision be effective 18 months from the date of publication of the minutes of the judgment of the declaratory appeals and that the transfer of ICMS credits be regulated by means of a supplementary law, and not by an agreement between the states.
There is “no doubt” about the approval of the thesis, says Rosa Weber
When announcing the result of ADI 4,411 on Thursday, in view of the different modulation proposals, Rosa Weber considered that there were six votes in favor of Barroso's proposal and that, therefore, there would be no "doubt" about its approval. "I understand that there is no doubt. The minister's [Barroso] modulation proposal prevailed," she said.
When Rosa Weber asked if everyone was in agreement, Luiz Fux agreed and said that, although the justices disagreed on the extent of the modulation, there were nine votes concluding that the decision should produce effects going forward, thus reaching the quorum of eight votes for the modulation of the effects of a decision in ADI. Fux also stated that this is a doubt “already overcome” by the STF.
“[I] agree because, in fact, the doubt that arose was a doubt that has now been overcome, that is, one thing is the quorum for modulation. So, nine ministers came to the conclusion that there should be modulation. Now, the extension of the modulation was supported by six ministers,” said Fux.
Edson Fachin noted that he was defeated in the thesis, since he had voted to reject the declaration of embargoes, but that Rosa Weber's decision “reflects the majority understanding of the court”.
There are 11 votes to modulate the decision in ADC 49, says lawyer
In a similar scenario, lawyer Ariane Costa Guimarães, partner at Mattos Filho Advogados, explains that, although there is divergence between the proposed theses, the 11 ministers agree that the decision in ADC 49 must be modulated.
According to the lawyer, based on the narrowest ground technique, in similar cases, if the majority (in the case of ADC 49, unanimity) of the ministers agree that the decision should be modulated, the modulation period is set based on the minimum consensus among the votes that have already positioned themselves in favor of modulation. In this case, based on the score formed, Fachin's proposal should prevail, she argues.
“Using this technique, they first look at the modulation quorum. Is there one or not? Yes, there is. If there is disagreement between them, the guideline with the majority is chosen. Since Fachin's vote was the winner, there would be no doubt that his understanding should prevail,” says Ariane.
Lawyer Betina Treiger Grupenmacher, a tenured professor at UFPR, also believes that Fachin's position should prevail. “Fachin's understanding should prevail, not a middle ground that was not deliberated. The result must be within what was deliberated, whether it was one vote or another. Since Fachin's vote was the winner, there would be no doubt that his understanding should prevail,” she states.
Tax lawyer Leonardo Gallotti Olinto, partner at Daudt, Castro e Gallotti Olinto Advogados, disagrees. According to the lawyer, unlike the case involving the public security tax in Minas Gerais, the declaratory embargoes in ADC 49 go beyond the discussion of temporal effects, since they deal with the maintenance and transfer of credit. In his view, there is a new issue of merit being analyzed in the embargoes.
For Gallotti Olinto, if there are not eight votes for one of the theses, the decision should not be modulated. “For me, the law is very clear. Two-thirds of the votes are needed to modulate the effects when there is a declaration of unconstitutionality,” he says.