In these Tax Law newsletter you will find:
- Superior Court of Justice (STJ) suspends rescission actions regarding the “thesis of the century”
- STF denies modulatation of effects on overruling of “res judicata”
- STF upholds PIS/Cofins on leasing
Superior Court of Justice (STJ) suspends rescission actions regarding the “thesis of the century”
The Superior Court of Justice (STJ) will judge the possibility of using rescission actions to review final decisions (“res judicata”) obtained by taxpayers in their proceedings, to adjust their scope to the terms of the modulation established by the Federal Supreme Court regarding the exclusion of ICMS from the PIS and COFINS base (Theme 69).
Special Appeals no. 2,066,696 and 2,054,759 have been assigned for judgment as repetitive appeals – meaning that the outcome of their judgment will apply to all cases on the same subject.
In addition, the STJ has decided to suspend all proceedings related to the subject matter in all judicial instances, including the STJ itself.
In 2017, the Federal Supreme Court (STF) decided that ICMS should not be included in the calculation base for PIS and COFINS, in what became known as the “century’s thesis.”
Later on, in 2021, the STF decided to modulate the effects of this thesis, establishing that it would only be applied from March 15, 2017, the date on which the judgment was finalized. This restriction did not affect legal proceedings initiated before that date.
However, given this lapse of time, many companies had already had final decisions before 2021, which had not applied the modulation. In many of these cases, the National Treasury filed rescission actions arguing that the modulations should be apply to them.
The STJ will thus decide whether this type of procedural instrument is applicable in these situations.
The respective special appeals have not yet been scheduled for judgment.
STF denies modulatation of effects on overruling of “res judicata”
The Federal Supreme Court (STF) analyzed motion for clarification in the Extraordinary Appeals (Res) 949,297 and 955,227 (Themes 881 and 885 of General Relevance), in which the Court analyzed the effects of its binding decision upon the previous decisions issued in individual proceedings.
On the merits the Court had already established that its decision in constitutional direct proceedings and general repercussions with binding effects automatically overrule all decisions in individual cases.
In this new trial, taxpayers pleaded the modulation of effects of such decision, so it would only apply to future cases.
However, most of the Justices followed the lead of the reporting Justice, Luís Roberto Barroso, that dismissed the plead. One of the motions, nonetheless, was partially granted to dismiss the penalties upon the Social Contribution under discussion in that case, related to the periods before February 13, 2023 (when the merits of the leading case were analyzed).
We expect that such a decision would raise other discussion, such as the dismissal of penalties in similar cases.
STF upholds PIS/Cofins on leasing
The Federal Supreme Court (STF) validated the levying of PIS and Cofins on revenues derived from the lease of goods (including real estate). The decision was rendered in the Extraordinary Appeals (REs) 659412 and 599658 (Themes 684 and 630).
Minister Alexandre de Moraes led the winning thesis by proposing the thesis that the concept of revenue mentioned in Article 195, Section I, of the Federal Constitution, is not limited solely to the sale of goods and services but encompasses all revenues from business activities.
The Plenary established the following thesis: “The levying of PIS and COFINS on revenues derived from the lease of goods, including real estate, is constitutional when it represents the taxpayer’s business activity, as the financial outcome of this operation is akin to the concept of gross revenue or turnover, as originally defined in Article 195, I, of the Federal Constitution.”
