Justice Alexandre de Moraes, of the Federal Supreme Court (STF), interrupted the trial that would define whether or not to maintain Ricardo Lewandowski's injunction that suspended all court decisions that, directly or indirectly, overturned Decree 11,374\/23. The rule, issued on January 1, during the Luiz In\u00e1cio Lula da Silva (PT) administration, annulled a decree by the Bolsonaro government that reduced the PIS and Cofins rates on financial income. The trial of the referendum on Lewandowski's precautionary measure was in a virtual plenary session until March 24.<\/p>\n\n\n\n
The interruption was due to a request for review and occurred after Andr\u00e9 Mendon\u00e7a's dissenting vote on the same Monday. The discussion is taking place in the Declaratory Action of Constitutionality (ADC) 84. Until the interruption, the score was tied at 1 to 1. According to the STF's rules, Moraes has 90 days to submit the request for review. For now, Lewandowski's injunction remains valid.<\/p>\n\n\n\n
The rapporteur, Justice Ricardo Lewandowski, voted to suspend the court decisions because he understands that there was no increase or reestablishment of the PIS\/Cofins tax rate on financial income earned by legal entities subject to the non-cumulative assessment regime. Therefore, there would be no reason to maintain the 90-day prior notice.<\/p>\n\n\n\n
In the preliminary injunction, Lewandowski explains that PIS\/Cofins contributions levied on financial income, with non-cumulative incidence, have as a triggering event the monthly billing. Therefore, the applicable law will be that in force on the date of the occurrence of the triggering event, that is, already under the validity of decree 11,374\/2023.<\/p>\n\n\n\n
\u201cAs can be seen, in its short period in the legal system, Decree 11,322\/2022 was not applied to the specific case, as there was not even 1 (one) business day to allow for the earning of financial income \u2013 that is, as the taxable event did not occur, the taxpayer did not acquire the right to submit to the tax regime that never came into effect\u201d, argued the rapporteur*.<\/p>\n\n\n\n
Mendon\u00e7a, on the other hand, believes the opposite. For him, the court decisions must be reinstated because Lula's decree cannot be used to collect taxes since the principle of the ninety-day period was not respected. In other words, the decree of January 1st with the return of the reduced PIS\/Cofins rates for financial revenues would only take effect 90 days after its publication.<\/p>\n\n\n\n
To support his vote, Mendon\u00e7a stated that the matter under discussion should not even be heard, that is, analyzed by the Supreme Court, since there is no relevant legal controversy on the subject, a basic requirement for the progress of a declaratory action of constitutionality. Furthermore, the survey of 279 actions was carried out by the Attorney General's Office of the National Treasury (PGFN) unilaterally, without data from the other party, in this case, the taxpayers.<\/p>\n\n\n\n
Mendon\u00e7a also rejects the argument of the impact on public coffers of R$5.82 billion, since this amount takes into account the entire fiscal year of 2023, when in fact, the controversy refers to the months of January, February and March 2023 and to taxpayers who effectively went to court in view of the immediate applicability of Decree No. 11,374, of 2023.<\/p>\n\n\n\n
\u201cIn short, from any perspective, it is not possible for a constitutional judge to assume as true, for the purposes of characterizing periculum in mora within the scope of abstract control of constitutionality, a billion-dollar amount of resources with a high probability of decontextualization or simple technical error,\u201d wrote Mendon\u00e7a.<\/p>\n\n\n\n
ADC 84 was proposed by the Attorney General's Office (AGU), which defended the regularity of Decree 11,374\/23, which reestablished the PIS and Cofins rates at 0.65% and 4%. The rule suspended Decree 11,322\/22, issued on December 30 by then Vice President Hamilton Mour\u00e3o, which reduced the rates to 0.33% and 2%, respectively.<\/p>\n\n\n\n
The enactment of Decree 11,374\/23, however, took taxpayers to court on the grounds that the rule increased taxes without observing the 90-day prior notice. According to the principle, the Public Treasury can only demand a tax after 90 days from the date of the rule that instituted or increased it.<\/p>\n\n\n\n
The rapporteur, Minister Ricardo Lewandowski, granted an injunction on March 8 suspending all judicial decisions that, directly or indirectly, overturned Lula's decree reestablishing the PIS\/Cofins tax rates.<\/p>\n\n\n\n