The ministers of the Federal Supreme Court (STF) concluded that the discussion involving the incidence of IRPJ and CSLL on amounts received as basic interest rate (Selic) in the withdrawal of judicial deposits is not constitutional in nature nor has general repercussions. Therefore, the appeal will not be analyzed by the STF.<\/p>\n\n\n\n
The decision in ARE 1405416 was unanimous. The only one who did not present a vote was Minister Andr\u00e9 Mendon\u00e7a.<\/p>\n\n\n\n
The STF recognizes that there is general repercussion in an appeal when it presents relevant issues from an economic, political, social or legal perspective that go beyond the subjective interests of the case. Since 2007, general repercussion has been an admissibility procedure.<\/p>\n\n\n\n
In this specific case, the Union questions a decision in favor of ZZSAP Ind\u00fastria e Com\u00e9rcio de Cal\u00e7ados LTDA not to collect the tax. The TRF4 concluded that \u201cthe amounts received as Selic applied to judicial deposit do not constitute income, capital increase or profit subject to tax or contribution\u201d.<\/p>\n\n\n\n
At the STF, the rapporteur for the analysis of the general repercussions, Minister Rosa Weber, concluded that the decision does not violate constitutional precepts. It would be necessary to analyze possible violations of infraconstitutional legislation \u2014 in this case, Law 8,541\/1992, Decree-Law 1,598\/1977 and Law No. 5,172\/1966 (CTN).<\/p>\n\n\n\n
\u201cIn the absence of a direct violation of the Constitution of the Republic in the matter submitted for examination, the requirement of general repercussion is not even considered, immediately deserving an extraordinary appeal, regardless of the presence or absence of the other admissibility requirements, a judgment of non-acknowledgement\u201d, stated Rosa Weber, in her statement.<\/p>\n\n\n\n
The ministers approved the following thesis: \u201cthe controversy regarding the incidence of IRPJ and CSLL on the amounts related to the SELIC rate concerning the withdrawal of judicial deposits is revealed to be infra-constitutional, applying to it the effects of the lack of general repercussion.\u201d<\/p>\n\n\n\n
For tax specialist Nina Pencak, partner at Mannrich e Vasconcelos Advogados, the decision is inconsistent with the precedent set by the STF in Theme 962. In this case, in 2021, the Supreme Court ruled that \u201cthe levy of IRPJ and CSLL on amounts related to the Selic rate received due to the repetition of undue tax is unconstitutional\u201d.<\/p>\n\n\n\n
In the case of repeated undue payment, the taxpayer requests the return of amounts paid unduly. According to Nina, the current trial discussed the application of the same Selic rate, but on the withdrawal of the judicial deposit. In this case, the taxpayer, instead of paying the debt and then challenging it in court, prefers to deposit the amounts while disputing the debt in court.<\/p>\n\n\n\n
Although, in this specific case, the STF decision is initially favorable to the taxpayer, it does not exhaust the discussion. The appeal will be sent to the Superior Court of Justice (STJ) for analysis of any violation of federal law. However, in 2013, the STJ decided, in a repetitive appeal, that the interest on both the recovery of undue payments and the return of judicial deposits are remunerative in nature and, therefore, should be taxed by IRPJ and CSLL. The decision is contained in REsp 1138695\/SC.<\/p>\n\n\n\n
The ruling on Theme 962, in the STF, was subsequent to that of this repetitive case and changed the case law, ruling out taxation on the Selic rate in the repetition of undue payments. Since, now, the discussion involving judicial deposits has not been admitted in the STF, taxpayers hope that, in line with Theme 962, the STJ will change its understanding to also rule out taxation in the withdrawal of the deposit.<\/p>\n\n\n\n
\u201cThe STF\u2019s decision [not to admit the appeal] is shocking and is bad for both the taxpayer and the Union. For the taxpayer, because it may discourage judicial deposits as a measure to guarantee debts. For the Union, because the amounts deposited are accounted for in the tax result,\u201d says Nina.<\/p>\n\n\n\n