Juliano Marini Siqueira
Lawyer at Marcos Martins Advogados
The discussion about the reasonable duration of the tax administrative process has been dragging on for the last few years, and until now, there has been no talk of a consolidated position among doctrine and case law on this subject.
The period to be considered reasonable is still the subject of various controversies. The main problem lies in the fact that the administrative process, once it has been initiated and the taxpayer has been notified, interrupts the statute of limitations, leaving the Public Treasury (Union, State, Federal District or Municipality) with the “eternal deadline” for judging the tax process.
At the end of 2013, the Superior Court of Justice did not recognize Special Appeal 1.411.301/RJ, filed by Rio de Janeiro against a decision by the Court of Justice of that state, in which the administrative statute of limitations was duly recognized because the state tax authorities had taken 12 (twelve) years to judge an administrative proceeding.
Regardless of the fact that the case was unsuccessful, on the grounds that the matter discussed therein was exclusively constitutional in nature, the discussion represented a favorable position for the taxpayer, since the non-recognition of the Special Appeal upheld the ruling handed down by the 9th Civil Chamber of the Court of Justice. Let’s see.
INTERLOCUTORY APPEAL. TAX LAW. INTERCURRENT ADMINISTRATIVE PROCEEDINGS. ART. 151, III, OF THE CTN. REASONABLE DURATION OF PROCEEDINGS. INTELLIGENCE OF ART. 5, CF. CONSTITUTIONAL GUARANTEE OF MANDATORY OBSERVANCE. During an administrative challenge or appeal, the enforceability of the tax debt is suspended and the statute of limitations does not run. However, the time limit for concluding the administrative process is not indefinite, and the statute of limitations must be recognized when almost twelve years have elapsed since the tax was filed, without the taxpayer having contributed to this, under penalty of accepting the very imprescriptibility of the tax. (Case No. 0065371-57.2010.8.19.0000, 9th Civil Chamber TJ/RJ, Reporting Judge Rogério de Oliveira, judgment 01/03/2010)
In this regard, in the judgment, we can see that the judge was right to base his decision on the maxim that the tax authorities do not have an eternal deadline for deciding administrative tax proceedings.
This is because the extreme slowness in presenting the decision results in exorbitant interest for the taxpayer, who in turn is faced with monstrous debts, often exclusive only of the interest applied, which frighteningly exceeds the value of the main debt. We can see this disproportionality when only the monetary correction by the SELIC rate over a period of 10 (ten) years turns 10 (ten) thousand reais into 30 (thirty) thousand reais, with the application of fines and other ancillary requirements.
Thus, a tax administrative process that is lost in time means that the taxpayer who loses the case will have to pay the interest and restatement costs of a lengthy procedure that is the sole and exclusive fault of the administration.
For this reason, art. 5, item LXXXVIII, of the Federal Constitution states that everyone, whether in the judicial or administrative sphere, is guaranteed a reasonable length of proceedings.
Art. 5 – Everyone is equal before the law, without distinction of any kind, and Brazilians and foreigners residing in the country are guaranteed the inviolability of the right to life, liberty, equality, security and property, under the following terms:
[…]
LXXVIII – everyone, in the judicial and administrative spheres, is guaranteed a reasonable duration of the process and the means that guarantee the speed of its processing.
Therefore, eternalizing a tax administrative process goes against the fundamental right enshrined in Article 5 of the Magna Carta, completely removing the rule set out therein.
However, even though it is clear that the current Federal Constitution is being offended, there is still no specific rule that determines negative consequences for conduct in the event of an extreme delay in concluding the tax administrative process.
It is not for nothing that we find a number of articles in current legislation that set a maximum time limit for certain conduct in the administrative sphere, such as Federal Law 9.784 of 1.999 (art. 48 and 49), which regulates the duty to decide on federal administrative proceedings within the legal time limit, as well as Law 11.457 of 2007 (art. 24), which determines the maximum time limit for an administrative decision to be handed down.
Law 9.784 of 1.999:
[…]
Art. 48 – The Administration has the duty to explicitly issue a decision in administrative proceedings and on requests or complaints, in matters within its competence.
Art. 49 – Once the administrative process has been concluded, the Administration has a period of up to thirty days to issue a decision, unless an extension for the same period is expressly justified.
Law 11.457 of 2007:
[…]
Art. 24 – It is mandatory for an administrative decision to be issued within a maximum of 360 (three hundred and sixty) days from the submission of the taxpayer’s claim.
We conclude that the public administration undoubtedly has a duty to issue a decision in administrative proceedings within a period that is acceptable as “reasonable”. Therefore, excessive delays in reaching a judgment and, consequently, the non-recognition of the inter-current statute of limitations in these cases, implies a direct offense against the constitutional text, as well as resulting in a violation of the guiding constitutional principles of the Public Administration itself (morality and efficiency), enshrined in art. 37 of the Federal Constitution of 1988.
Art. 37 – The direct and indirect public administration of any of the Powers of the Union, the States, the Federal District and the Municipalities shall obey the principles of legality, impersonality, morality, publicity and efficiency […].
And along these lines follows the position of the Superior Court of Justice, in Special Appeal 1138296/RS, which ruled on the reasonable duration of the tax administrative process.
TAX. CONSTITUTIONAL. SPECIALAPPEAL REPRESENTATIVE OF CONTROVERSY. ART. 543-C OF THE CPC. REASONABLE DURATION OF PROCEEDINGS. FEDERAL TAX ADMINISTRATIVE PROCEEDINGS. ADMINISTRATIVE REQUEST FOR REFUND. DEADLINE FOR DECISION BY THE PUBLIC ADMINISTRATION. APPLICATION OF LAW 9.784/99. IMPOSSIBILITY. GENERAL RULE. TAX ADMINISTRATIVE PROCEDURE LAW. DECREE 70.235/72. ART. 24 OF LAW 11.457/07. PROCEDURAL RULE. IMMEDIATE APPLICATION. VIOLATION OF ART. 535 OF THE CPC NOT ESTABLISHED.
1. The reasonable duration of proceedings was erected as a fundamental right by Constitutional Amendment 45 of 2004, which added to art. 5, item LXXVIII, in verbis: “to all, in the judicial and administrative spheres, are assured the reasonable duration of the process and the means that guarantee the celerity of its processing.” 2) The conclusion of administrative proceedings within a reasonable time is a corollary of the principles of efficiency, morality and reasonableness. (Precedents: MS 13.584/DF, Rel. Minister JORGE MUSSI, THIRD SECTION, judged on May 13, 2009, DJe June 26, 2009; REsp 1091042/SC, Rel. Justice ELIANA CALMON, SECOND COURT, judged on August 6, 2009, DJe August 21, 2009; MS 13.545/DF, Justice MARIA THEREZA DE ASSIS MOURA, THIRD SECTION, judged on October 29, 2008, DJe November 7, 2008; REsp 690.819/RS, Justice JOSÉ DELGADO, FIRST COURT, judged on February 22, 2005, DJe December 19, 2005) (…)
5. Law No. 11457/07, with the aim of filling the existing legislative gap, in its Article 24, established the obligation to issue an administrative decision within a maximum of 360 (three hundred and sixty) days from the filing of applications, litteris: “Art. 24. It is mandatory that an administrative decision be issued within a maximum of 360 (three hundred and sixty) days from the filing of petitions, defenses or administrative appeals by the taxpayer.” (6) Since this legal provision is of a tax procedural nature, it must be applied immediately to pending requests, defenses or administrative appeals. (…)
9. Special appeal partially granted, in order to determine compliance with the 360-day deadline for concluding the sub judice procedure. Judgment submitted to the regime of article 543-C of the CPC and STJ Resolution 08/2008. (REsp 1138206/Rs, Reporting Justice Luiz Fux, First Section, Judgment 09/08/2010)
Therefore, even though there is no legal provision preventing administrative tax proceedings from lasting for interminable periods, case law has already recognized that these judgments must comply with the constitutional provision of reasonable length of proceedings, which initially seems to us to be a step towards recognizing the application of the inter-current statute of limitations in these cases.
