ESTADÃO publishes article by Eduardo Maneira and Eduardo Lourenço with tributary retrospective of 2021

In an article published in Estadão, partners Eduardo Maneira and Eduardo Lourenço take a look back at the most notable tax judgments that took place throughout 2021 at the STF.

2021 Retrospective – the STF and Tax Law

Eduardo Maneira and Eduardo Lourenço*

December 16, 2021

The year 2021 was marked by many tax judgments in the Federal Supreme Court. The virtual sessions proved to be productive, with results for and against taxpayers. Below, we will highlight the cases that we consider most relevant.

In Februarythe thesis was established according to which “the taxable event on the transfer of inter vivos real estate (ITBI) only occurs with the effective transfer of real estate property, which takes place through registration” (ARE 1.294.969).

It was also decided that “the inclusion of the Tax on the Circulation of Goods and Services – ICMS in the calculation basis of the Social Security Contribution on Gross Revenue – CPRB” (RE 1,187,264) is constitutional. Still on ICMS, the Court's plenary stated that “the collection of the rate differential referring to ICMS, as introduced by Constitutional Amendment No. 87/2015, presupposes the publication of a complementary law conveying general rules.” (ARE 1,287,019). This last case suffered temporal modulation of the effects of the decision.

Reaffirming the Court's jurisprudence, the unconstitutionality of two state inspection fees was declared: a) the Fee for Control, Monitoring and Inspection of Exploration and Use of Water Resources Activities (ADI 5374); and b) the Environmental Control, Monitoring and Inspection Fee for Generation, Transmission and/or Distribution of Electric Energy of Hydraulic, Thermal and Thermonuclear Origin Activities (ADI 5489).

Finally, it was in February that the STF finalized the judgment of ADI 1945, which questions the Mato Grosso law that required ICMS on software. The Court ended up deciding that the ISS is applicable to the licensing or assignment of the right to use computer programs. The interesting thing in this case is the modulation, which was perhaps one of the greatest framing options for the purposes of defining the validity of the declaration of unconstitutionality.

In Marchthe STF plenary ruled that “the states and the Federal District are prohibited from establishing the ITCMD” without the complementary law required by the constitutional provision (RE 851.108). Another case in which the effects of the decision were modulated.

In ADI 5481, the Supreme Court declared the unconstitutionality of the ICMS requirement on oil extraction operations and its circulation from wells to the concessionary company. There was modulation, which had no practical effect of changing the result, since all taxpayers had shares.

It was also in March that the STF modulated the effects of the decision in RE 605.552. In 2020, the thesis was established that ISS is levied on medicines compounded to order and that ICMS is levied on off-the-shelf medicines.

The trial of RE 835.818 began in the same month, in which the rapporteur (minister Marco Aurélio), accompanied by ministers Rosa Weber, Edson Fachin, Cármen Lúcia, Ricardo Lewandowski and Roberto Barroso, proposed the thesis according to which “It appears incompatible, with the Federal Constitution, the inclusion, in the calculation basis of Cofins and the contribution to PIS, of presumed credits of the Tax on Circulation of Goods and Services – ICMS”. On the other hand, ministers Alexandre de Moraes, Gilmar Mendes, Nunes Marques and Luiz Fux proposed the thesis that “The values ​​corresponding to presumed ICMS credits arising from tax incentives granted by the States and the Federal District are part of the PIS and Cofins calculation basis”. The trial was interrupted following a request from Minister Dias Toffoli.

Several other relevant topics in the tax field were judged in March. And the same thing happened in April,when the Supreme Court ruled that “the intervention contribution in the economic domain allocated to Incra owed by urban and rural companies is constitutional, including after the advent of EC No. 33/2001.” (RE 630,898). This case followed the same line as the judgment of RE 603.624, considered in 2020 and which analyzed contributions to Sebrae, Apex and ABDI.

Perhaps one of the cases that is causing the most doubts among taxpayers and States, the STF certified the unconstitutionality of the ICMS requirement on the transfer of goods between establishments of the same taxpayer. Modulation (ADC 49) is under discussion in this relevant topic.

This month there was also a modulation in RE 669.196, in which the “unconstitutionality of article 1 of Resolution CG/REFIS nº 20/2001 was declared, which suppressed the notification of the legal entity opting for Refis, prior to the act of exclusion, establishing that it takes effect ex nunc, from the date of publication of the minutes of judgment of the merits of the extraordinary appeal, in order to validate the acts already carried out, with the exception of ongoing legal actions.”

In Maythe ministers understood that “article 42 of Law 9,430/1996 is constitutional.” (RE 855.649). This device allows the levying of Income Tax on deposits of origin not proven by the taxpayer.

In dealing with immunity, they established that “public companies and mixed-capital companies delegating essential public services, which do not distribute profits to private shareholders nor pose a risk to the competitive balance, are beneficiaries of the reciprocal tax immunity provided for in article 150, VI, a, of the Federal Constitution, regardless of charging a fee as consideration for the service” (RE 1.320.054).

It was also in May that the Union's declaration embargoes were partially accepted to modulate the effects of the thesis of the century, that is, the exclusion of ICMS from the PIS and Cofins calculation base. It was established that “ICMS does not form the calculation basis for the purposes of levying PIS and COFINS -, except for judicial and administrative actions filed up to the date of the session in which the judgment was handed down” (RE 574.706). Rightly, the Court rejected the attempt to limit the credit to what the tax authorities tried to impose as “effectively paid”.

In Junethe ministers decided that (i) “Article 5 of Law No. 9,779/1999 is constitutional, which authorizes the collection of Income Tax on financial results verified in the settlement of swap contracts for hedging purposes” (RE 1,224,696); (ii) “Articles 47 and 48 of Law 11,196/2005, which prohibit the calculation of PIS/Cofins credits in the acquisition of recyclable inputs, are unconstitutional” (RE 607,109); (iii) “The inclusion of the Tax on Services of Any Nature - ISS in the calculation basis of the Social Security Contribution on Gross Revenue - CPRB is constitutional;” (RE 1,285,845); (iv) that the law of the State of Pará that establishes a special ICMS collection regime is unconstitutional, with a reduction in the calculation base and aggregate margin, differentiating the origin of the merchandise and requiring that all stages of industrialization be carried out in the State (ADI 6479).

Also in June, the trial of ADPF 647 began, questioning the Federal Tax Authority's competence to recognize the employment relationship of self-employed workers or legal entities without prior approval from the Labor Court. There was a request for review and the trial has not yet been concluded.

It was inAugust, in ADI 6144, that the Court, despite having modulated the effects of the decision, ruled that the state decree that regulates tax substitution provided for in the CONFAZ Agreement is unconstitutional when the state law providing for the regime is absent. On the other hand, ADI 4858 established that it is possible to regulate the ICMS rate in interstate operations with goods and merchandise imported from abroad by Resolution of the Federal Senate.

In September, the ministers understood that “the incidence of IRPJ and CSLL on amounts relating to the Selic rate received as a result of repeated tax debt is unconstitutional” (RE 1,063,187) and that “state law that regulates the liability of third parties for infractions in a manner different from the general rules established by the Code is unconstitutional National Tax” (ADI 6284).

In addition, the trial of ADI 6821 has begun, which discusses the requirement for ITCMD, by state of the federation, in the event that the donor is domiciled or resides abroad. This trial was also suspended on request.

InOctoberthe trial of RE 851.421 began, also interrupted by a request for review from Minister Alexandre de Moraes, in which Minister Roberto Barroso (rapporteur) proposed the thesis that “a state or district law is constitutional which, with the support of a CONFAZ agreement, grants remission of ICMS credits arising from tax benefits previously judged unconstitutional.” In ADI 5422, the Court established the thesis that “the incidence of income tax on alimony or alimony when based on family law is unconstitutional.”

With many judgments, inNovemberthe Court understood that (i) “it is constitutional to include the value of IPI levied on sales transactions carried out by manufacturers or importers of vehicles in the presumed calculation base established to provide, under a tax substitution regime, early collection and collection, in accordance with article 43 of Provisional Measure no. 2.158-35/2001, of contributions to PIS and Cofins owed by retail traders;” (RE 605.506); (ii) “the Accident Prevention Factor (FAP), provided for in article 10 of Law No. 10,666/2003, along the lines of the regulation promoted by Decree 3,048/99 (RPS) meets the principle of tax legality (art. 150, I, CRFB/88)” (RE 677,725); (iii) “foreigners who demonstrate their low-sufficiency status, under the terms of the governing legislation, are immune from paying fees for registration of immigration regularization” (RE 1,018,911); (iv) “adopted, by the state legislator, the technique of selectivity in relation to the Tax on Circulation of Goods and Services – ICMS, the rates on electricity operations and telecommunications services differ from the constitutional standard at a level higher than that of operations in general, considering the essential nature of the goods and services”. (RE 714.139).

This last case, that of essentiality, the issue of modulation continues to be discussed, with two votes (ministers Dias Toffoli and Gilmar Mendes) determining that the decision takes effect from 2024, with the exception of actions filed until the start of the judgment on the merits (5.2.2021). In addition to the innovation in relation to the temporal term, we understand that all actions (annulments and infraction notices, for example) should be outside the modulation. Taxpayers are watching this matter closely and with apprehension.

Finally, in November the trial of ADI 4784 began, in which the thesis was proposed that “the collection of the Tax on Services of Any Nature (ISS) on the postal franchise is constitutional”. The trial was interrupted following a request from Minister Alexandre de Moraes.”

In December some relevant topics in the tax sphere are still planned, with special emphasis being given to RREE 955.227 and 949.297, which deal, respectively, with the “effects of the decisions of the Federal Supreme Court in diffuse control of constitutionality over the res judicata formed in ongoing tax relations” and “limits of the res judicata in tax matters, notably in the face of of judgment, under concentrated control by the Federal Supreme Court, which declares the constitutionality of a tax previously considered unconstitutional, via incidental control, by final and unappealable decision.”

In conclusion, we cannot fail to mention that the number of tax judgments is increasing more and more, the vast majority in virtual sessions. However, this does not seem to us to be a bad thing, as long as the cases are effectively analyzed and the parties are given the possibility of not only speaking, but being heard.

On the other hand, something that has greatly concerned taxpayers is the significant increase in temporal modulations of the effects of decisions. This is one of the topics that will dominate debates in 2022.

*Eduardo Maneira, associate professor at UFRJ, master and doctor from UFMG, director of ABDF, president of the Special Commission on Tax Law of the national OAB; partner at Maneira Advogados

*Eduardo Lourenço, master and doctoral student in Constitutional Law at the Centro Universitário de Brasília (UniCEUB); LLM in Tax Law from IBMEC/DF; partner at Maneira Advogados

https://politica.estadao.com.br/blogs/fausto-macedo/retrospectiva-2021-o-stf-e-o-direito-tributario/