Dados necessários para melhorar nosso serviço e personalizar a sua experiência.
Revenue or Labor Court: who can recognize the expiry of tax credits arising from judgments?
Revenue or Labor Court: who can recognize the expiry of tax credits arising from judgments?
Decisions determine that the expiry of tax credits arising from labor sentences must be counted from the date of service provision
Letícia Mori
This report is part of the special project Jurisprudente, a coalition for legal security
Two recent sentences established that it is illegal for the Receita Federal (RF) to cover social security tax credits arising from labor sentences after the statute of limitations, when more than 5 years have passed between the triggering event and the tax requirement.
The Organic Social Security Law (Law no. 8,212/1991) determines, in article 43, that when there are labor actions that result in the payment of rights subject to the incidence of social security contributions, the triggering event occurs on the date of provision of the service.
As the result of actions in the Labor Justice often takes more than five years to come out, it is common that, when the sentence is given, the statute of limitations has already passed, analyzes tax lawyer Felipe Cianca Fortes, who filed the actions in the federal courts of Lages and Petrópolis.
The Revenue, however, had been collecting the credits through eSocial, where labor data is entered, and DCTFWeb, where tax credits and debts are entered. The tax authorities had also been refusing to reimburse them, with the argument that only the Courts could “recognize the obsolescence” of the obligation.
The eSocial system requires the full recording of data on labor processes and the collection of corresponding contributions, even if the credits have already expired.
Until 2022, the taxpayer himself could offset credits through the e-CAC Portal, through an application called PER/DCOMP. That year, however, the Federal Revenue Service made changes to the system and removed the “GPS – 2909” code, which made it possible to offset tax credits paid incorrectly. OJOTAquestioned the Federal Revenue Service about the reason for the change, but did not receive a response until the publication of this report.
From then on, the taxpayer started having to go to court to recover these credits, asking the IRS to reimburse them because there was a delay.
The Attorney General's Office of the National Treasury (PGFN), however, argues that only the Labor Court would have the power to “recognize the decadence” and this would be outside the jurisdiction of the Federal Revenue.
The Union also says that the 5-year statute of limitations in labor cases must be counted from the final and unappealable decision that settles the credit, as it is only at that moment that the release becomes possible.
According to the PGFN, the Social Security Organic Law must be interpreted in harmony with article 173 of the National Tax Code (CTN), which states that the five years of expiry must be counted “from the first day of the financial year following the one in which the assessment could have been made”.
Federal judges from Santa Catarina and Rio de Janeiro, however, understood that the Federal Revenue Service's conduct of forcing taxpayers to pay already extinguished credits is illegal.
In a decision dated February 4, judge Reili de Oliveira Sampaio, of the 1st Federal Court of Petrópolis, recognized the unenforceability of social security contributions (employer, RAT and third parties) after five years had passed from the provision of the service until their requirement in the labor sentence.
He also ordered the Union to modify the eSocial and DCTFWeb systems so that they do not automatically generate these debts and that the Federal Revenue guarantees compensation for the amounts paid.
“Although the Federal Constitution attributes to the Labor Court the competence to execute, ex officio, social contributions resulting from the sentences it renders, this attribution does not exhaust the administrative role of the Federal Revenue Service in the constitution, supervision and demand of tax credit within the scope of the federal collection system”, wrote Sampaio, “especially when the controversy is not limited to the labor jurisdictional act itself, but to the administrative requirement arising from the operationalization of eSocial and DCTFWeb”.
Felipe Cianca Fortes points out that it is not common for the issue of decadence to be dealt with by the Labor Court. And he says that the Revenue is contradicting itself by saying that it does not have the authority to determine the statute of limitations.
"If the Revenue disagrees with a sentence that says that an amount is compensation (and therefore would not have a social security contribution), it will speak out and charge the contribution. So why does it have the authority to do this and not to recognize the decline?", says Fortes.
Contradictory precedents
Federal judge Anderson Barg, of the 1st Federal Court of Lages, also understood that the IRS's allegation of passive illegitimacy does not deserve acceptance and that both the Federal Court and the Labor Court have legitimacy to decide on the credits.
He also stated that once the main obligation has lapsed, it is “prohibited for the Tax Administration to use computerized systems as an indirect means of collecting extinguished credit”.
For Judge Sampaio, Law 8.212/91 is very clear in stating that the event generating social contributions resulting from a sentence is considered to have occurred on the date of service provision.
“This is a clear, valid and current legislative option, which specifically defines the temporal criteria for the hypothesis of tax incidence in these situations”, he says.
For Fortes, the Revenue's interpretation in such a divergent way from what the law says creates enormous legal uncertainty.
"I understand that this choice of triggering event can generate losses for the public coffers. But this was the legislative choice, it is a matter that then needs to be discussed in Congress", he says.
The topic is quite controversial: although there is jurisprudence in favor of Fortes' understanding in TRF4, there is contrary precedent in the Superior Court of Justice, explains lawyer Daniel Lannes, partner in the tax area at Maneira Advogados.
In Civil Appeal 5031662-12.2019.4.04.7200, judge Leandro Paulsen stated that the Federal Revenue delegate does have legitimacy to be the target of the Writ of Mandamus that requests recognition of the extinction of the charge.
According to the judge, article 879 of the Consolidation of Labor Laws (CLT), in its 3rd paragraph, allows the interpretation that the competence attributed by the Constitution to the Labor Court is not to assess the tax, but to determine the amount due and notify the Union, which would be the holder of “the competence to launch, to express itself, proceeding, subsequently, to the execution”.
The PGFN, however, argues that its position is supported by the STJ's decision in REsp 1.965.173, which determined that the sentence already delimits the tax obligation and authorizes execution, therefore there would be no statute of limitations.
Lannes says he disagrees with this understanding.
“Strictly speaking, to collect these contributions, there should be a tax assessment notice or notification of assessment by the Federal Revenue Service”, he says, because the CTN expressly says, in article 142, that “it is the exclusive responsibility of the administrative authority to constitute the tax credit for the assessment”.
“But the 1st and 2nd panel of the STJ have already judged that the assessment by the Federal Revenue Service is unnecessary, because what constitutes the credit is the labor ruling, going against what the Organic Social Security Law says”, states Lannes.
The PGFN says that it is also based on RE 569.056, in which the STF understood that direct execution by the Labor Court, without the need for prior administrative release, is constitutional and aims at the effectiveness of social security collection.
None of the precedents cited by the PGFN, however, addresses the thesis that the Federal Revenue Service would not have the authority to declare the tax credit expired, as argued by the Union in the Federal Court proceedings.
The writs of mandamus are processed under numbers 5011354-85.2025.4.02.5102/RJ and 5008067-53.2025.4.04.7206/SC.
Letícia Mori
JOTA special reporter. She has a degree in journalism from the University of São Paulo (USP), where she studies Law. Previously worked for BBC News Brasil, Folha de S.Paulo, TV Globo and Editora Abril. Email: leticia.mori@jota.info
See other related news stories
Press
Averages should not ignore the Contumacious Debtor Law, experts say
May 11, 2026Media should not ignore the Contumacious Debtor Law, experts say Risks are greater for companies that fail to comply with balance sheet obligations and are unaware of the situation of related parties By Suzana Liskauskas, Para o Valor — Rio de Janeiro Instituted...
