The Federal Revenue may charge, retroactively and automatically, taxes from taxpayers who won the right not to pay in the Federal Supreme Court (STF), but lose the right in the future if the Court changes its understanding. Unanimously, the Plenary of the STF approved today (8) a binding precedent that “breaks” final judicial decisions.
With the measure, the tax authorities gained a free pass to collect taxes and contributions not paid by taxpayers who had ultimately won the right not to pay the tax, but whose decision was later reversed by the Supreme Court. Until now, in these cases, charging was not automatic. The Revenue had to file a rescission action, which could be accepted or rejected by the Justice, in order to start collecting.
With general repercussions, the binding precedent applies to all concentrated constitutional control judgments from now on. The trial had begun last week and concluded on Wednesday.
The Court also decided the period after the change of decision of the STF in which the Revenue will start charging. The traditional understanding of the Constitution prevailed, which establishes 90 days (after the STF decision) in the case of increased contributions and the beginning of the following year (after the decision) in the case of tax increases. This point was not approved unanimously, with ministers Gilmar Mendes, Dias Toffoli and André Mendonça voting against it.
Modulation
In addition to automating the collection in the future, the STF authorized the collection of unpaid taxes in the past. The Tax Authorities may collect the taxes related to the period in which the taxpayer was exempt by decision of the Court. By 6 votes to 5, the Supreme overturned the modulation of effects, which defines the moment from which a decision takes effect.
Without the measure, large companies that questioned the payment of taxes to the STF in recent years began to have large liabilities in lawsuits that questioned the decision of the Social Contribution on Net Profit (CSLL) of Income Tax, the incidence of Tax on Products Industrialized Products (IPI) on the resale of imported products, the employer’s contribution on the additional one-third of vacations and the collection of the Contribution for the Financing of Social Security (Cofins) for uniprofessional companies.
In the case of CSLL, the end of the modulation could make the Revenue collect the contribution due since 2007, when the STF considered the tax calculation basis to be constitutional. If there was modulation, the Tax Authorities could only collect the tax 90 days after the publication of the minutes of the judgment by the Supreme Court.
Ministers Luís Roberto Barroso, Gilmar Mendes, André Mendonça, Alexandre de Moraes, Cármen Lúcia and Rosa Weber voted against the modulation. Ministers Edson Fachin, Nunes Marques, Luiz Fux, Ricardo Lewandowski and Dias Toffoli voted in favor. Toffoli had voted last week to end modulation, but changed his decision today.
