Recently, the Federal Supreme Court (STF) ruled on two Extraordinary Appeals, RE 955.227 and RE 949.297, which deal with res judicata in successive tax relationships.
These appeals, of significant relevance to the legal scene, discussed the temporal scope of res judicata in cases where the constitutionality of a tax is subsequently reassessed.
Thus, the STF established that a court decision, either in concentrated control or in general repercussion, which opposes a res judicata favorable to the taxpayer in ongoing tax legal relationships, results in the creation of a new legal norm.
It is important to note that, according to the decision, the Treasury does not need to file a new lawsuit to apply this understanding.
The modulation of effects, as determined by Justice Roberto Barroso, indicates that res judicata becomes invalid from the date of publication of the STF ruling that contradicts the previous decision, respecting non-retroactivity, annual anteriority, noventena and, in the case of social security contributions, nonagesimal anteriority.
The taxpayers, however, filed a motion for clarification, arguing that the STF’s directive is innovative and that the Court did not adequately address the issue of modulation of effects.
There is an STJ precedent that would be contrary to the STF’s decision, as well as pointing out the need for modulation of effects and the absence of previous STF case law on the termination of the effects of res judicata in successive legal relationships.
In the judgment of the motions for clarification, Justice Roberto Barroso voted not to hear them, supported by the majority of the justices. However, with Justice Toffoli’s request for a rehearing, the trial has not yet been concluded.
The STF’s final decision will have profound implications for the application of res judicata in tax matters, marking an important chapter in the jurisprudence of Brazilian tax law.
If you have any questions on the subject, our tax team is available to answer them.
