The Office of the Attorney General of the National Treasury (PGFN) is working to reopen proceedings regarding the exclusion of ICMS from the calculation of PIS and Cofins. The attacks are being made against companies that filed a lawsuit after March 2017 and obtained a final decision before the Supreme Federal Court (STF) concluded its judgment on the thesis in May. There are at least two favorable preliminary injunctions.<\/p>\n\n\n\n
These companies have obtained, through the lawsuits, the right to receive back the amounts they overpaid to the government and have been using these credits to pay off current taxes. However, even with a favorable decision in hand, lawyers say, with the tax authorities' counterattack they run the risk of suffering a setback and having to return amounts already used.<\/p>\n\n\n\n
The injunctions were granted in rescissory actions. Judges of the Federal Regional Courts (TRF) of the 4th Region, in the South of the country, and of the 5th Region, which covers states in the Northeast, suspended the effects of final decisions (final and binding) that favored taxpayers.<\/p>\n\n\n\n
There is another similar case also being tried by the 5th Regional Federal Court. The prosecutors made the same request, but in the execution of a sentence \u2013 another procedural route. This is because, in this specific case, the company is interested in receiving the amounts owed by the Union through a court order. The Treasury's request was denied.<\/p>\n\n\n\n
This risk was raised by tax lawyers when the STF concluded the judgment of the so-called \u201cthesis of the century\u201d (RE 574,706). The ministers, on that occasion, limited the effects of the decision that determined the exclusion of ICMS from the calculation of PIS and Cofins, taken earlier, on March 15, 2017.<\/p>\n\n\n\n
The ministers applied the so-called modulation of effects to the case. They made a time cut, using the judgment on the merits as the base date. From March 15, 2017 onwards, no taxpayer needed to collect PIS and Cofins with the state tax included in the bill.<\/p>\n\n\n\n
However, different situations have been created in relation to the recovery of amounts that were overpaid in the past, before the base date. Those taxpayers who had lawsuits in progress up until March 15, 2017 are entitled to a full refund \u2013 for the five years prior to the filing of the lawsuit.<\/p>\n\n\n\n
The rule changes, however, for those who filed a lawsuit after March 15, 2017. For these companies, the recovery from the past was limited. The base date applies. A company that filed the lawsuit in 2018, for example, will be able to recover what it paid unduly since 2017 only. Without the modulation of effects, it would have until 2013.<\/p>\n\n\n\n
However, as the STF took a long time to judge this case \u2013 there were four years between the decision on the merits and the conclusion, through embargoes \u2013 many companies that filed the lawsuit after March 2017 had already obtained final decisions (final and binding).<\/p>\n\n\n\n
These individual decisions, since they are prior, do not have a time limit. This is why companies have accounted for the amounts overpaid in the past \u2013 prior to 2017 \u2013 and have been using these credits to pay current taxes. One of the companies targeted by the PGFN, for example, has already registered R$15T 30 million with the Federal Revenue Service.<\/p>\n\n\n\n
The prosecutors' role is to block the use of these credits or, in the case of court orders, to ensure that lower amounts are issued. They argue to the judges that the decisions violate the modulation established later by the STF and ask that adjustments be made.<\/p>\n\n\n\n
These requests are based on article 966, paragraph 5, of the Code of Civil Procedure (CPC). This provision states that \u201ca rescission action may be filed against a decision based on a summary statement or judgment issued in a trial of repetitive cases that did not consider the existence of a distinction between the issue discussed in the proceedings and the decision-making standard that gave rise to it\u201d.<\/p>\n\n\n\n
The companies' lawyers disagree. Julio Janolio, from the law firm Vinhas e Redenschi, states that article 966 must be interpreted in conjunction with article 535, which, in paragraph 7, states that the decisions of the STF do not apply to sentences that have become final at an earlier time. "The modulation did not change the merit of the thesis and, furthermore, there was no change in the jurisprudential orientation", he says.<\/p>\n\n\n\n
It is still too early to say which understanding will prevail among the judges. There are few decisions and they were issued in a monocratic manner \u2013 all in the month of July.<\/p>\n\n\n\n
Judge Luciane Amaral Corr\u00eaa M\u00fcnch, from the 4th Region TRF, states that \u201cthere is plausibility in the allegation\u201d of the National Treasury and granted a preliminary injunction last Friday (case number 5029969-88.2021.4.04.0000).<\/p>\n\n\n\n
A few days earlier, Judge Elio Wanderley de Siqueira Filho, of the 5th Region Federal Court, had already done the same (case number 0808389-27.2021.4.05.0000). He highlights, in the decision, that there is a two-year period, counting from the STF judgment, for rescission actions to be filed.<\/p>\n\n\n\n
Judge Leonardo Carvalho, who also works at the 5th Region Federal Court, agreed with the taxpayer. The company's argument is based on article 535, paragraph 7, of the CPC. \u201cThe STF itself settled the controversy in the judgment of theme 360 (RE 611503)\u201d, he says (case no. 080 7622-86.2021.4.05.0000).<\/p>\n\n\n\n
Diego Miguita, an expert in the field from the VBSO Advogados law firm, says that this issue has the potential to become another long dispute between the Federal Government and taxpayers. \u201cIt could end up, once again, in the Supreme Court,\u201d he says.<\/p>\n\n\n\n
The lawyer criticizes the admissibility of rescission actions. He states that the very instrument of modulation of effects aims to guarantee legal certainty, which includes \u201cthe protection of res judicata\u201d. \u201cIt is necessary to differentiate the situation of the taxpayer who has a perfect and finished action, from that of the one who has the request in progress.\u201d<\/p>\n\n\n\n
The PGFN states in a note that it evaluates each specific case, \u201cbased on institutionally defined strategic prioritization criteria\u201d, to decide whether or not a rescission action is appropriate and that the lawsuits already filed are specific. \u201cThere are less than a dozen cases\u201d, it says.<\/p>\n\n\n\n
Regarding the decision of the 5th Region TRF that denied the request, it is reported that this is a different case from the others. \u201cA specific issue is being discussed regarding the peculiarities of the specific case, which, it should be noted, is at a different procedural stage.\u201d<\/p>\n\n\n\n