© Reuters.
BRASÍLIA (Reuters) – The ministers of the Federal Supreme Court (STF) have indicated that they should relativize or even annul the right that taxpayers and companies won in court — in actions that no longer fit appeals — not to pay certain taxes in cases where until there is a later decision by the Court itself to the contrary, according to lawyers consulted by Reuters.
The plenary entered this Thursday on the second day of judgment of a case that gained general repercussions, which means that the understanding signed by the Supreme Court will serve as a benchmark for all instances of the Judiciary with impacts on other types of taxes.
The case will resume next Wednesday, with the votes of justices Ricardo Lewandowski and the president of the STF, Rosa Weber, and still in the midst of the debate on votes, with the possibility of modifying the positions of those who have already spoken.
Tax lawyer Caio Cesar Nader Quintella said that the votes already cast indicate that there will be a relativization of the security of the so-called “res judicata” in individual actions on tax issues. This would occur when there was a contrary position of the Supreme in actions of wide reach and scope, such as direct actions of unconstitutionality or actions of declaration of constitutionality.
“Such a decision, which reverts a previously majority position in the judiciary and winning in the Superior Chamber of Carf until then, exposes companies and taxpayers to tax collections that had previously been ruled out in court cases in which they won”, said he, who is a partner at Ogawa, Lazzerotti e Baraldi Advogados office.
For tax law specialist Guilherme Peloso Araújo, the tendency of the STF so far is to cease the effects of res judicata in concrete cases. According to him, it is important for the Supreme Court to analyze which precedents would have the strength to stop these effects in view of the lack of stability of the courts.
“By deciding that the new position of the Court can suspend the res judicata, it is to be expected that citizens and taxpayers base their daily choices in the sense of adhering to the jurisprudential positions, that is, it will be possible to stop collecting tribute, without using a measure court case, in case there is a Supreme Court precedent in this regard”, said Araújo.
“The solution in this context seems to us to be the most correct, on the other hand, little applicable in the Brazilian legal environment, which historically suffers from changing positions and case-by-case decisions handed down by the STF itself. In Brazil, legal certainty is highly affected by constant jurisprudential changes” , highlighted.
(Reporting by Ricardo Brito)