For tax experts, the STJ's proposal for reform litigation may cause divergent decisions
Source: Legal Consultant
The ministers of the Superior Court of Justice Regina Helena Costa and Paulo
Sergio Domingues presented, last week, a proposal for a normative act
to regulate the judicialization of taxes created by the reform
tributária.
Members of a STJ working group that studied the possible impacts
judicial rules of the new rules, the magistrates propose a "litigant
single" policy. The idea is that the actions on the collection of a tax are
concentrated in an entity of the federation (the Union, the state or the municipality), which
would be defined based on certain criteria. The plan was detailed in
article published by the electronic magazine Consultor Jurídico last Thursday
(11/9).
The central objective of the proposal, according to the ministers, is to avoid the multiplication
of lawsuits related to the Tax on Goods and Services (IBS) and the Contribution
Social on Goods and Services (CBS), the two taxes resulting from the reform. In
report published at the end of April, the judges estimated that the tax procedural >
in seeking a system that avoids multiple judicialization. They believe, however, >
on the same tax, depending on the judging forum.
The proposal of the STJ
The tax reform is focused on consumption taxes. The ICMS, de
state competence, and the ISS, municipal, will be gradually replaced by the
IBS, which will have a shared attribution between states, municipalities and the District
Federal. Cofins and PIS and Pasep contributions will give way to CBS,
which will be under the responsibility of the Federal Government.
The legal structure of the reform (Constitutional Amendment 132/2023 and Complementary Law
214/2025) did not create rules for the resolution of disputes over
new taxes. The amendment only established that the STJ will judge conflicts between
the federative entities and the IBS Management Committee — the body that will collect
and manage this tax — but did not regulate the judgment of cases of
taxpayers.
To solve this problem, the STJ proposes that only one federative entity
represents the interests of the Tax Authorities in each case. This would apply both to tax >
Taxpayer size
— Federal Government must litigate with taxpayers subject to the real profit regime (in
general large companies, with revenues above R$ 78 million per year);
— The taxpayer's state of domicile must litigate with taxpayers subject to profit
presumed (in general days companies);
— The municipality of domicile of the taxpayer must litigate with those opting for
Simples Nacional or individuals.
Amount of the tax credit
— In the case of executions (or annulment actions) of tax credit, What
account is the amount of the credit, and not the size of the taxpayer. Actions of "high
value" should remain with the Federal Government, while those of "small value" should be held by the Federal Government
municipalities.
Limitations
For the experts heard by ConJur, the STJ's proposal opens the door to
different judicial understandings on the same tax, depending on the level
of the federative entity. A controversy over the collection of the IBS, for example,
could result in discrepant decisions between a state court and the Justice
Federal, for example.
"The proposal opens the possibility of different judicial responses to the same
tax coming simultaneously from the state and Federal Courts, depending on
who is legitimized for the lawsuit", evaluates Marcos Meira, founding partner
of the law firm M. Meira Advogados.
For Igor Mauler Santiago, founding partner of Mauler Advogados, the possible
"divided ball" between the entities is the biggest bottleneck of the proposal. "The diagnosis is
accurate, and the proposal is intelligent, in a logic of cooperative federalism. Só
I have doubts about whether the Union would accept to have its credits defended by another
entity and whether states and municipalities would accept a secondary role in the collection",
ponders he.
The assessment is shared by Diego Diniz Ribeiro, former member of the
Administrative Council of Tax Appeals (Carf). "The proposal does not solve
the problem of lack of uniformity. We can have a very same fact
tax that results in a decision of the Federal Court in one direction and a
decision of the State Court in the opposite direction."
In the view of Júlio M. de Oliveira, partner of Machado Associados, there will be
chance of discrepant understandings not only in the judicial sphere, but also in the administrative sphere
. "It is not known which will be the judicial courts
competent for the tax disputes of the IBS and CBS. Also in the
administrative sphere there is a great distrust that
diverse instances, with a multiplicity of understandings."
Suggestions
The lawyers consulted by ConJur have different views on the best
way to solve the problem. For most of them, the litigation should be
concentrated in the Federal Court.
"In my view, every case involves the Union in some way, because the IBS
and the CBS operate with the same law, the same rules, the same taxable event.
In other words, every cause ends up having federal repercussions, so the Federal Court
should judge", says Mary Elbe Queiroz, president of the National Center for
the Prevention and Resolution of Tax Conflicts (Cenapret).
"Any bill should unify the judgment of these taxes in a
single administrative sphere. The two new taxes are twins and deserve >
legal", predicts Júlio de Oliveira.