In this Tax Law newsletter, you will find:
- Supreme Federal Court will judge the DIFAL collection in 2022 with general repercussion
- STF holds that refund in a writ of mandamus must be made through a precatory
- Superior Court of Justice rules that tax authority is not required to verify if taxpayer has ICMS (State VAT) tax credits
- Superior Court of Justice rules that taxpayer can withdraw deposit without proving assumption of liabilities
Supreme Federal Court will judge the DIFAL collection in 2022 with general repercussion
The Supreme Federal Court (STF) has recognized the general repercussion of Extraordinary Appeal No. 1426271, in which it will assess whether the difference between the intrastate and interstate State VAT Differential Rate (DIFAL) could be collected in 2022 or whether it should comply with the constitutional rule of “noventena” (entering into force 90 days after the law that instituted or increased a tax) and/or “anterioridade anual” (entering into force as of the first day of the year following that in which the law instituted or increased the tax).
This matter is already known to many taxpayers because the issue is identical to that addressed in Direct Actions of Unconstitutionality (ADIs) 7066/DF; 7070/DF, and 7078/CE. These actions began to be judged in 2022 but will be resumed only in STF’s in-person plenary session due to a request of Minister Rosa Weber. The main discussion in these actions revolves around whether Complementary Law 190/2022, which regulates the DIFAL, instituted or increased the tax and, therefore, must comply with the grandfathering rules above before being applied.
Justice Rosa Weber, who is also the rapporteur of the extraordinary appeal, argued that addressing this issue comprehensively prevents the judicial system from having to deal with many repeated decisions on the same subject. This is because, with the results of the ADIs alone, the courts cannot prevent cases that go against binding jurisprudence from reaching the higher courts.
Despite the recognition of the general repercussion, there is still no defined date for the judgement of the RE or the ADIs.
STF holds that refund in a writ of mandamus must be made through a precatory
The STF, while analyzing Extraordinary Appeal No. 1420691, recognized the general repercussion of the appeal and declared that the refund of tax credits to taxpayers after a judicial decision must follow the system of precatories.
The Court established the thesis that the administrative refund of the undue amount recognized in judicial cases is not admissible, and it is essential to observe the constitutional regime of precatories, as provided in Article 100 of the Federal Constitution.
This means that the taxpayer must enforce and settle the judgement through legal means in order to obtain a precatory as the sole method of receiving the amount they are entitled to, in case offsetting of tax credits is not possible.
This topic is always relevant when determining a procedural strategy for addressing tax matters and seeking the recovery of undue taxes.
Superior Court of Justice rules that tax authority is not required to verify if taxpayer has ICMS (State VAT) tax credits
The 1st Panel of the Superior Court of Justice (STJ) unanimously decided, in the case of the Special Appeal No. 1821549/SP, that it is not the obligation of the tax authority to verify whether the taxpayer had State VAT tax credits in their accounting records before issuing the infraction notice for non-payment of the tax.
In the specific case, the tax authority had assessed a debt of State VAT in the amount of BRL 1,8 million. The company argued that, at the time of the tax notice, it had BRL 20 million worth of tax credits and that it was the tax inspector’s duty to verify the existence of this balance and offset such amounts, under penalty of violating the non-cumulativity regime.
However, the Ministers of the STJ rejected the appeal arguing that the use of State VAT tax credits for the purpose of offsetting the tax due is a right to be exercised by the taxpayer at the time of self-assessment, and it is not possible to impose on the tax authority the obligation to perform this reconciliation when conducting an official assessment.
Superior Court of Justice rules that taxpayer can withdraw deposit without proving assumption of liabilities
The 2nd Panel of the STJ, unanimously decided, in the case of the Special Appeal 2302212/RS, that when withdrawing a judicial deposit in a case related to the collection of the State VAT Differential Rate (DIFAL), the taxpayer does not need to provide evidence that they assumed the tax liability or obtained authorization from the consumer. As a result, the Ministers rejected the appeal presented by the State of Rio Grande do Sul.
These rules are established in Article 166 of the National Tax Code (CTN) and apply when it comes to the refund of taxes that, by their nature, involve the transfer of the liability to third parties, as is the case with the consumer.
The State argued that, even in the context of withdrawing judicial deposits, the taxpayer should demonstrate compliance with these requirements.
However, the STJ held that withdrawing a deposit is not equivalent to the refund of a tax, which is why such requirements would not be applicable to the case.