Angelo Ambrizzi, lawyer at Marcos Martins Advogados.
The tax scene is in turmoil after a ruling by the Federal Supreme Court (STF) authorized the “breaking” of final and unappealable court decisions – especially those that recognized the non-mandatory payment of certain taxes. The decision was unanimous.
In practice, taxpayers who have a final and unappealable court decision ruling them out of paying the tax can be charged again by the tax authorities if there is a subsequent STF ruling to the contrary.
Before this decision, the only way to force the taxpayer to pay the tax that had been judicially recognized as unenforceable was through a separate (and individual) lawsuit filed by the tax authorities against the taxpayer. However, in view of the STF’s current understanding, collection may be automatic in the event of a subsequent ruling by the Court, which recognizes that payment is due.
The biggest concern is that, by a majority vote, the justices opted not to apply the so-called “modulation of the effects of the decision”. In other words, the effects of the ruling will not be restricted to future cases, but will also reach taxes not paid in the past by the taxpayer, due to a favorable non-appealable court decision, the payment of which can now be demanded with the imposition of fines and interest.
Legal uncertainty has set in. The current context will certainly have a major impact on the business scenario, since several tax debts have not been paid by Brazilian companies over the last few decades, such as the non-payment of the Social Contribution on Net Profits (CSLL), which has had to be paid into the public coffers since 2007.
In the 1990s, countless companies had their obligation to pay this Contribution removed after taking legal action. However, in 2007, the Federal Supreme Court recognized the constitutionality of collecting the tax.
In view of the STF’s new understanding, these companies will now be obliged to pay the Contribution since 2007, given that there is no modulation of the effects of the decision.
This situation also applies to cases in which payment of the Tax on Industrialized Products (IPI) had been interrupted by taxpayer companies reselling imported products due to a final court decision.
Specifically with regard to IPI, even before the STF finalized its ruling on the breaking of final decisions, the Superior Court of Justice (STJ) adopted, on the same day, the understanding that it is possible to reverse decisions that exempted taxpayers from paying the tax, as long as there is subsequent case law from the Court to the contrary.
The financial impact for companies is in the billions and brings significant insecurity from a legal perspective, highlighting the need for them to have at their disposal a team trained to provide quality legal advice.
Currently, there is the possibility of taxpayers opting to simulate and even adhere to the tax transaction, analyzing the framework of the Zero Litigation Program to try to extend the debt over time and avoid disbursement in a single installment. It is not known whether there will be any special program for the payment of these debts, until then considered illegal or unconstitutional for the company that sought legal action.
