Fox requests importance, and the request moves to the actual plenary session

A landmark application by Minister Louise Fuchs, of the STF, suspended judgment on the new application to amend the effects of the decision which set the limits of res judicata in tax matters. The dispute is the subject of the ban for clarification in Resolutions 949297 and RE 955227 (topics 881 and 885 of the general implications).

Judging on the declaration proposals began on Friday (9/22), and the result was 1 x 0 to reject the new amendment request. With the request for importance, the case will be resumed from scratch in a plenary session, with no specific date yet set.

On February 8 of this year, STF IDUnanimously, a taxpayer who obtains a favorable court decision with a final ruling allowing non-payment of tax automatically loses his right to face the new understanding from the Supreme Court considering the constitutional charge. The specific case includes CSLL, but affects other taxes paid on an ongoing basis.

Moreover, at the time of ruling on the matter, the Ministers had rejected, by a ratio of 6×5, the application for adjustment of effects. In practice, this means that taxpayers with an appropriate, non-appealable final decision allowing non-payment of CSLL will have to pay the tax again since 2007, the date on which the STF recognized the constitutionality of the contribution in ruling ADI 15 and Fox was one of the ministers who voted for Adjusting the effects, i.e. so that taxpayers do not have to pay CSLL again until after the minutes of the ruling on the matter, i.e. on February 13, 2023. .

In the advertising ban cases that are now being decided in the virtual plenary session, Taxpayers insist on requesting an amendment. TBM – Têxtil, for example, which is a party to RE 949297, requests that the decision enter into force as of February 13, 2023. The same request was drawn up by the Federation of Industries of the State of São Paulo (Fiesp) and the Federal Council of the Brazilian Bar Association (CFOAB). They are friends of the court in appeals. Wesp, in turn, defends the effectiveness of the decision for judgments issued after the publication of trial records for requests for clarification or at least to raise events that occurred after this important event.

Before the request for importance, there was only a vote for the decision maker of the ban, Minister Luis Roberto Barroso. The judge voted not to take note of the amicus curiae’s ban (and thus not to analyze its merits) and to reject the ban on TBM – Têxtil, as he considered that there was no ambiguity, inconsistency, omission or material error in the ruling.

According to the Rapporteur, the Special Court of the Court has a firm understanding that amicus curiae does not have the legitimacy to appeal decisions on the merits. Regarding the parties’ appeals, Barroso held that there was no ambiguity, inconsistency, omission or material error that justified the admission of requests for clarification. At the merits trial in February, Barroso opposed the motion to modify the effects.

Christian Bonfanti – Assistant editor at JOTA Tributes in Brasilia. She is a journalist and holds a law degree from UniCeub, with a specialization in Political Science from UnB and an MBA in Planning, Budgeting and Public Management from FGV. He previously worked in the editorial offices of Correio braziliense, O Globo and Valor Econômico. e-mail: [email protected]