The plenary of the Federal Supreme Court (STF) unanimously confirmed the decision that exempts from income tax (IR) the amounts received as alimony, ending a dispute between the Union and pensioners that lasted about seven years.
The exemption from income tax on alimony arising from family law had already been decided in June by the plenary, by 8 votes to 3. This time, however, all 11 ministers rejected an appeal in which the Union said there were obscurities and sought to soften the Supreme Court decision. The case was tried in the virtual plenary, in a session that ended last Friday (30).
With the total rejection of this last embargo for clarification, the government must now stop collecting R$ 1.05 billion per year, according to estimates from the Federal Revenue attached to the process by the Attorney General’s Office (AGU).
The fiscal impact, however, can go further, as pensioners who had the money collected by the government can now ask for the money back in court, up to the maximum legal term of five years. According to official estimates, the impact on public coffers with so-called overpayments could reach R$ 6.5 billion over the next five years.
In the end, the understanding of the rapporteur, Minister Dias Toffoli, prevailed. He stressed, for example, that “taxation recognized as unconstitutional violated fundamental rights and also affected the interests of vulnerable people”.
For this reason, it would not be possible to prevent undue charges made in the past by the Federal Revenue, as to do so would harm the dignity of the human person, a stony clause of the Constitution and “one of the foundations of alimony”, wrote the minister.
In this way, Toffoli and the other ministers who followed him rejected any modulation so that the decision would only take effect from the trial onwards.
The plenary also rejected another request made by the Union, which wanted clarification on the exemption from IR in the case of pensions paid as a result of extrajudicial agreements, which are registered in public deeds and do not pass through the scrutiny of Justice.
In the petition, AGU argued that, in these cases, the value of pensions goes beyond the highest income bracket in the IR table. According to calculations by the Federal Revenue, the 40 largest pensions exceed R$ 2 million per month.
With similar arguments, the Union also asked the Supreme Court to limit the decision to pensions with an amount up to the IR exemption floor (R$ 1903.98).
In his vote, Toffoli highlighted that the issue had already been addressed, and that complying with the request would result in the “conversion, at least in part, of the losing current into a winning current”, which would not be possible through a motion for clarification.
