The Attorney General's Office (AGU) filed a lawsuit with the Federal Supreme Court (STF) on Friday (February 3) requesting that the Court confirm the constitutionality of decree 11,374\/2023, which reestablished the PIS\/Pasep and Cofins tax rates to 0.65% to 4% on financial income earned by legal entities subject to the non-cumulative regime. The Union also requests that court decisions throughout the country that rule out the application of the current rule be temporarily suspended. (Read the initial petition)<\/p>\n\n\n\n
The decree under discussion was signed by President Luiz In\u00e1cio Lula da Silva on January 1, 2023, to revoke another decree signed by the vice president of the previous administration, Hamilton Mour\u00e3o, which reduced taxes by R$501,000 \u2013 which would mean a cut of R$5.823 billion in federal revenue. The document came into effect on December 30, two days before the change in government.<\/p>\n\n\n\n
However, after the new presidential decree, several taxpayers filed writs of mandamus in court to ensure the collection of PIS\/Pasep and Cofins contributions at the reduced rates \u2013 of 0.33% and 2% \u2013 as per the decree issued in 2022, and many have won in courts across the country. Taxpayers claim that the new decree increased taxes in violation of the principle of 90-day prior notice \u2013 according to which the Public Treasury can only demand payment of a tax that was instituted or increased after 90 days from the date on which the law that instituted or increased them was published.<\/p>\n\n\n\n
According to the AGU, the situation needs to be resolved by the Supreme Court because the judicialization of the matter is increasing in the country. Data from the Attorney General's Office of the National Treasury (PGFN) show that, between January 9 and 19, 54 writs of mandamus were filed. \u201cThis situation highlights the enormous multiplicative potential of the legal discussion. Only from January 18, 2023 to January 19, 2023, 20 (twenty) new cases were distributed\u201d, says the petition sent to the Supreme Court. The AGU also points out that several taxpayers have obtained victories in the courts, which generates unconstitutional precedents and legal uncertainty.<\/p>\n\n\n\n
\u201cThe practice of refusing to apply Decree No. 11,374\/2023 \u2013 which excluded from the legal world the stillborn Decree No. 11,322\/2022 \u2013 implies a direct affront to the Constitution of the Republic and has generated a situation of uncertainty and legal insecurity, in addition to severely compromising the balance of public accounts, due to the unreasonable waiver of revenue\u201d.<\/p>\n\n\n\n
In the initial petition filed with the Supreme Court, the AGU contests the taxpayers' arguments. For the Union's attorneys, the new decree did not impose a tax increase, but merely maintained the rates in force since 2015. Furthermore, it reinforces that the decree issued by Mour\u00e3o was never applied, as it was scheduled to start on January 1, 2023, and on the same day Lula signed the new decree. Therefore, in the AGU's view, there was no reduction or increase in the tax.<\/p>\n\n\n\n