Retrospective 2022 – the STF and Tax Law

The Estadão website published an article written by Drs. Eduardo Maneira and Eduardo Lourenço, partners at Maneira Advogados, which provides a retrospective of the most relevant topics in tax law judged by the Federal Supreme Court in 2022.

Retrospective 2022 – the STF and Tax Law

By Eduardo Maneira and Eduardo Lourenço*

12/25/2022

Just like in the previous year, in 2022 we had many judgments on tax matters at the Federal Supreme Court and, almost all of them, in virtual sessions. This retrospective aims to highlight the most relevant cases judged.

In February, the year began with a judgment, within the scope of the First Panel, which attested to the need to respect the precedence when the “tax benefit that enabled the generation of ICMS credits even if the circulation of goods was exempt” was extinguished. This is because “tax precedence aims to ensure the predictability of the tax burden, protecting legal certainty, non-surprise and legitimate expectations”. The trial was concluded by a majority vote, with ministers Alexandre de Moraes and Cármen Lúcia losing. The rapporteur for the ruling was Minister Luís Roberto Barroso, accompanied by Ministers Dias Toffoli and Rosa Weber (ARE 1343737).

Still in February, the STF reaffirmed the jurisprudence of Theme 825 (“The States and the Federal District are prohibited from establishing the ITCMD in the cases referred to in art. 155, § 1, III, of the Federal Constitution without the issuance of the complementary law required by the aforementioned constitutional provision”) and declared the law of the state of Maranhão unconstitutional. However, it promoted the modulation of the effects following the publication of the ruling on the topic of general repercussion, with the exception of lawsuits filed (ADI 6821).

Moving forward to March, the full Court defined the thesis, from a trial concluded in 2020, in the sense that “The inclusion of amounts retained by card administrators in the calculation basis of contributions to PIS and COFINS owed by a company that receives payments through credit and debit cards is constitutional” (RE 1049811).

In the same month, the trial of ADIs 6399, 6415 and 6403 began, in which the rule was questioned according to which the result of a tied trial within the scope of the CARF must be proclaimed in favor of the taxpayer. Currently, we have Minister Marco Aurélio's vote for formal unconstitutionality and, if defeated, for material constitutionality. At this point, he was followed by ministers Roberto Barroso, Alexandre de Moraes, Edson Fachin, Cármen Lúcia and Ricardo Lewandowski. The trial was suspended following a request from Minister Nunes Marques.

In April, the Court concluded the trial of a concentrated control action filed in 2001. By majority vote, it declared the constitutionality of art. 1 of Complementary Law No. 104/2001, notably in the addition of the sole paragraph to art. 116 of the CTN, allowing the tax administration to disregard acts or legal transactions carried out with the purpose of concealing the occurrence of the event giving rise to the tax obligation (ADI 2446).

Accepting opposing declaration embargoes in view of the understanding established in 2021, according to which “the incidence of IRPJ and CSLL on amounts relating to the Selic rate received due to the repetition of undue tax is unconstitutional”, the ministers clarified “that the embargoed decision applies only in cases in which there is an increase in default interest, through the Selic rate in question, in the repetition of undue tax debt (including that made through compensation), whether at the administrative or judicial level”. On the same occasion, they modulated “the effects of the embargoed decision, establishing that it takes effect ex nunc from 9/30/21 (date of publication of the minutes of the judgment on the merits), with the exception of: a) actions filed until 17/9/21 (date of the beginning of the judgment on the merits); b) the triggering events prior to 30/9/21 in relation to which there was no payment of the IRPJ or CSLL to which it refers the thesis of general repercussion” (RE 1063187).

Since the 2021 retrospective, we have been highlighting the importance of the ADC 49 judgment. As a reminder, in this case the STF certified the unconstitutionality of the ICMS requirement on the transfer of goods between establishments of the same taxpayer. The trial of the embargoes, which request the modulation of the effects, was interrupted in May following a request for review by Minister Nunes Marques and is scheduled to continue in February 2023. There are several possibilities for modulation, but there is a consensus that a prospective term must be set so as not to harm taxpayers who need the tax incidence when transferring to enjoy state tax benefits.

In June, discussions began around fuel taxation, notably the single-phase tax regime and rate (whether ad rem or ad valorem) and the validity of MP 1,118/2022, which only came into effect after 90 days from the date of its publication (ADI 7181).

Still in June, the ministers established, by majority vote, the thesis according to which “the veto power provided for in article 66, § 1, of the Constitution cannot be exercised after the constitutional period of 15 (fifteen) days has elapsed” (ADPF 893).

In August, ministers declared the constitutionality of Mining Law No. 19,976/2011, which established a tax for control, monitoring and inspection of research, mining, exploration and use of mining resources (TFRM). In this case, it is important to highlight an excerpt from the syllabus to the effect that "observance of the principle of proportionality imposes not strict equivalence, but rather, reasonable equivalence between the value of the fee and the costs of state activity. Therefore, some budgetary slack is acceptable, so that the cost of monitoring activities carried out for purely private profit purposes is not borne by society as a whole" (ADIs 4786 and 4785).

In September, the trial on the collection of DIFAL in the year 2022 began, still without a definition, without observing the annual and nonagesimal priorities. Initially, the rapporteur, Minister Alexandre de Moraes, dismissed the actions as unfounded. Next, Minister Dias Toffoli asked for a review, who voted for the need to respect nonagesimal precedence. Subsequently, ministers Edson Fachin, Cármen Lúcia, Ricardo Lewandowski, André Mendonça and Rosa Weber voted for the need to comply with the principles of annual and nonagenarian precedence, leading to a request for a view from minister Gilmar Mendes, who ended up accompanying minister Dias Toffoli and, subsequently, minister Rosa Weber, who had already voted, highlighted the trial, which will be restarted at a new opportunity in the physical plenary (ADIs 7066, 7070 and 7078).

With discussions surrounding the elections and related actions, we will only have relevant tax judgments again in November. At the beginning of the month, the thesis was established in topic 699: "The collection, in the face of closed non-immune supplementary pension entities, of Income Tax withheld at source (IRRF) and Social Contribution on Net Profit (CSLL) (RE 612686) is constitutional. Then, considering topic 756 of the general repercussion, the following theses were established: "I. The ordinary legislator has the autonomy to regulate the non-cumulative nature referred to in art. 195, § 12, of the Constitution, respecting other constitutional precepts, such as the constitutional matrix of contributions to PIS and COFINS and the principles of reasonableness, equality, free competition and protection of trust; II. It is infraconstitutional, applying the effects of the absence of general repercussion, to discuss the expression input present in art. 3rd, II, of Laws nº 10,637/02 and 10,833/03 and on the compatibility, with these laws, of IN SRF nº 247/02 (considered the update by IN SRF nº 358/03) and 404/04. III. Paragraph 3 of art is constitutional. 31 of Law No. 10,865/04” (RE 841979).

It was at the end of November that the Court began to analyze a very relevant matter for taxpayers, becoming res judicata. Minister Edson Fachin, rapporteur in one of the cases, voted to establish the following thesis: “The temporal effectiveness of material res judicata derived from a continuing tax relationship has a resolutive condition that is implemented with the publication of the minutes of a subsequent judgment carried out in the context of abstract and concentrated control of constitutionality by the Federal Supreme Court, when the decisional commands are opposed, observing the constitutional rules of non-retroactivity, the annual precedence and the nineteen or ninety-simal anteriority, of according to the tax type in question”. Minister Roberto Barroso, rapporteur in the other process, voted to establish the following thesis: “1. The decisions of the STF in incidental control of constitutionality, prior to the institution of the general repercussion regime, do not automatically impact the res judicata that has been formed, even in tax legal relations of successive treatment. 2. Decisions handed down in direct action or with general repercussion automatically interrupt the temporal effects of final and unappealable decisions in the aforementioned relationships, respecting non-retroactivity, annual and ninety-year or nineagesimal anteriority, depending on the nature of the tax." He was fully accompanied by ministers Rosa Weber, Dias Toffoli and Alexandre de Moraes. Minister Gilmar Mendes partially followed, differing only regarding the application of the principles of anteriority (annual and/or nineagesimal). However, the trials will be restarted in the physical plenary session as a result of the highlights presented, in both cases, by Minister Edson Fachin (RREE 955227 and 949297).

At the beginning of December, the STF closed the trial of opposing motions for clarification in light of a judgment on the merits concluded in 2016 (non-incidence of ICMS on the basic monthly subscription charged by telephone service providers, regardless of the minute allowance granted or not to the user). The declarations were provided to “modulate the effects of the declaration of constitutionality over time, so that the ICMS is levied on the ‘basic monthly subscription without deductible’ from the date of publication of the trial minutes of the ruling in which the merits were assessed, that is, 10/21/2016” (RE 912888).

Still in December, the trial of RE 640452 began, with the thesis being proposed by the rapporteur, minister Roberto Barroso, to the effect that “the isolated fine, due to non-compliance with an accessory obligation, cannot be greater than 20% (twenty percent) of the value of the tax due, when there is an underlying main obligation, under penalty of confiscation”. the trial was suspended following a request from Minister Dias Toffoli. The judgment on RE 781.926 was also suspended, but at the request of minister André Mendonça, after the rapporteur, minister Dias Toffoli, voted to establish the thesis that “the deferral of ICMS relating to the departure of anhydrous fuel ethyl alcohol (AEAC) from plants or distilleries to the moment of departure of gasoline C from distributors (ICMS Agreements nº 80/97 and 110/07) does not generate the right tax credit for distributors”. Minister Cármen Lúcia accompanied the rapporteur.

Another extremely relevant case was not finalized, at the request of minister Dias Toffoli, after the rapporteur, minister Ricardo Lewandowski, voted to establish the thesis that “the concept of billing as a calculation basis for the collection of PIS and COFINS, in the face of financial institutions, is the revenue arising from banking, financial and credit activities arising from the sale of products, services or products and services, until the advent of the Constitutional Amendment 20/1998” (RE 609096).

In a final judgment, the Court established the thesis that “the institution of a fee for monitoring the operation of data and voice transmission and reception towers and antennas is the exclusive responsibility of the Union, in accordance with article 22, IV, of the Federal Constitution, and it is not up to the Municipalities to institute said fee”. This decision was modulated so that “the decision takes effect from the date of publication of the minutes of judgment on the merits, with the exception of actions filed up to the same date” (RE 776594).

Another three trials concluded in December. In the first, it was established that “article 22A of Law No. 8,212/1991, with the wording of Law No. 10,256/2001, is constitutional, which established a social security contribution levied on gross revenue from the commercialization of production, replacing the previous regime of contributions levied on the payroll” (RE 611601). In the second, that “the contribution allocated to SENAR levied on the gross revenue from the commercialization of rural production is constitutional, in accordance with article 2 of Law nº 8,540/92, with the amendments of article 6 of Law 9,528/97 and article 3 of Law nº 10,256/01” (RE 816830). Finally, the STF considered the constitutionality of the contribution to Funrural, with the casting vote of Minister Dias Toffoli. However, this minister voted for the unconstitutionality of subrogation, an issue that still needs to be clarified by the STF (ADI 4395).

In conclusion, there is much talk about judicial activism practiced by the STF, but what we have seen, especially in the tax sphere, is the reaffirmation of the constitutional text. In the 2021 retrospective, we indicated that trials in virtual sessions and the modulations of effects would intensify in 2022. That is exactly what happened and, for 2023, we believe that tax reform will be the protagonist of tax discussions and the STF should maintain its stance of limiting excesses of the power to tax.

*Eduardo Maneira is an associate professor at UFRJ, master and doctor from UFMG, director of ABDF, coordinator of Tax Law at the national ESA; partner at Maneira Advogados

*Eduardo Lourenço has a master's degree and a doctorate in Constitutional Law from the Centro Universitário de Brasília (UniCEUB); LLM in Tax Law from IBMEC/DF; partner at Maneira Advogados

https://www.estadao.com.br/politica/blog-do-fausto-macedo/retrospectiva-2022-o-stf-e-o-direito-tributario/