The Brazilian Supreme Court (STF) has formed a majority to validate the monthly limit for offsetting tax credits recognized by a final court decision when the amount exceeds R$ 10 million. The judgment is taking place in the Court's virtual plenary until this Monday (September 14).
The limitation on offsets was established by Provisional Measure (MP) 1.202/2023, converted into Law 14.873/2024. According to the rule, the monthly limit must be graduated according to the total value of the credit and cannot be less than 1/60 of the amount due. The first offset declaration must be submitted within five years of the final judgment of the decision or the approval of the withdrawal from the execution of the judicial title.
According to Zanin, the fact that a taxpayer holds a credit against the Treasury does not guarantee the right to use it for compensation "in the quantity and at the time unilaterally chosen.".
“"The court decision condemning the Public Treasury establishes the substantive right to the credit; however, the option to use it as an instrument for extinguishing tax debts must follow the compensation regime provided for by law," he stated.
According to the minister, there is also no violation of the principle of legality in the possibility of the Finance Minister defining the limit, since the law, in his view, has already established sufficient guidelines for administrative action.
Zanin cited precedents from the Supreme Federal Court (STF) that allow for the imposition of limits on tax compensation by ordinary law. Among them is RE 917285, judged under Theme 874 of general repercussion, in which the Court defined that article 170 of the National Tax Code (CTN) — regarding methods of extinguishing tax credit — does not create an unrestricted subjective right to compensation.
The minister also highlighted that the Supreme Federal Court (STF) has already recognized the possibility for the legislature to regulate the manner and timing of the use of tax credits, including in the ICMS (Tax on Circulation of Goods and Services) compensation regime, in Topic 346. .
In ADI 7609, Zanin was joined by ministers Alexandre de Moraes, Dias Toffoli, Edson Fachin, Cármen Lúcia, and Flávio Dino. In ADI 7587, Minister Luiz Fux also voted in the same direction. For now, there is no registered dissent.
Type of judgment virtual
Process : ADIs 7587 e 7609
Parts New Party and Podemos vs. President of the Republic
Rapporteur Cristiano Zanin
Source:JOTA