STF and STJ give “aid” of more than R$ 200 billion to the government

In addition to the series of measures announced to increase tax collection, the federal government has been relying on the decisions of the Superior Court of Justice (STJ) and the Federal Supreme Court (STF) to reinforce the National Treasury’s cash flow and achieve the result targets. primary for this and the coming years.

A survey carried out by Cascione Advogados and Machado Associados, published by “Valor Econômico”, shows that the Union was victorious in ten out of 14 tax judgments carried out in the first half of 2023. The taxpayer won on only four occasions. Taken together, the decisions favorable to the Treasury have the potential to generate additional revenue of up to R$ 210.8 billion.

Among the victories are, among others:

The amount of almost BRL 211 billion, however, considers a scenario in which all taxpayers would have stopped paying the disputed taxes and requested the thesis. As in most cases a part of the estimated value has already been paid by taxpayers who did not file the lawsuits, the amount that will enter the public coffers based on the decisions should not reach the estimated total.

The Federal Revenue itself has already revised from R$ 90 billion initially calculated to R$ 47 billion the impact of the levy of IRPJ and CSLL on ICMS tax incentives by the states.

Government created structure to monitor risks and visits courts

In any case, the sequence of decisions favorable to the Union does not occur by chance, but results from a change in the relationship between the government and the courts, which includes closer monitoring of relevant theses and even visits by high-ranking members of the Ministry of Justice. Finance to ministers of the superior courts.

The minister himself, Fernando Haddad, spoke directly with members of the 1st Section of the STJ during the judgment regarding federal taxation on state incentives.

“It is obvious that the STJ is a superior court of the highest respectability. It will certainly end up in the Supreme Court, but I am sure it is an important signal as to whether or not we are going to have a transparent country from the point of view of tax spending”, said Haddad shortly after meeting with the rapporteur of the process, Benedito Gonçalves, in April.

Days later, he met with STF Minister André Mendonça, accompanied by the Minister of Planning and Budget, Simone Tebet, and the Attorney General of the Union, Jorge Messias, to discuss the matter. At the time, Haddad said he expected a “quick outcome” of the case.

The visits are part of an expedient formally adopted by the government and announced together with fiscal adjustment measures. Decree 11,379/2023, of January 12, established the Council for the Follow-up and Monitoring of Judicial Tax Risks.

Among the objectives of the Council is “to encourage the adoption of solutions aimed at strengthening and subsidizing the activities of the Union’s judicial representation bodies, its autarchies and its foundations, in the monitoring of judicial events capable of affecting public accounts”.

Haddad spoke of the new structure on the same day, during the announcement of a package of actions aimed at raising revenue. “We formed a group to monitor fiscal risks of a judicial nature, which will not only include the Union’s attorney general, but also the Minister of Finance and the Minister of Planning. That is, we will act technically in the courts with great force, ”he said.

On the “Jota” portal, members of the Ministry of Finance and the superior courts themselves were unanimous in highlighting a change in the relationship between the Union and the courts. “They are saving the fiscal framework”, summed up an advisor working at the STF to the publication.

Another STJ minister heard by the portal pointed out that the Treasury has been more careful when resorting to the court, observing which issues there is a defined position. “There was an improvement in the quality control of the treasury resources to verify if they were merely challenging our jurisprudence despite qualified precedents”, he said.

An interlocutor from the Ministry of Finance said that closer government action in judicial cases could even have an effect on reducing the precatories owed by the Union.

Tax experts see government influence in court decisions

For Luciano Ogawa, tax lawyer partner at Ogawa, Lazzerotti e Baraldi Advogados, the scoreboard of judgments with a decision favorable to the Union since the inauguration of Luiz Inácio Lula da Silva (PT) suggests a political action by the superior courts.

“It is notorious that in recent years the superior courts have been relativizing the commands contained in the constitutional charter, in order to serve political interests”, he says.

“The PGFN itself [Procuradoria-Geral da Fazenda Nacional] always presents as a defense basis the alleged gap of billions of reais that each decision would have the potential to create and, on the other hand, based on consequentialist and neoconstitutionalist theories, the ministers broaden their interpretations of the norms in order to meet such government interests” , says Ogawa.

For him, in the case of taxation of ICMS subsidies by IRPJ and CSLL, “it was possible to notice that an attempt was made to create a differentiation between the types of ICMS incentives to allow greater tax collection”.

Alberto Medeiros, a tax lawyer and partner at TozziniFreire Advogados, considers that the way the Brazilian Judiciary operates is different from that of supreme courts in other countries, but understands that the dialogue between the federal government and the STF is part of the institutional framework of the country.

“In Brazil, the STF, unlike other supreme courts, and due to the characteristics of our Constitution and our national tax system, considers several issues in tax matters. That’s a feature sui generis of our court”, he says.

“As a supreme court, it is subject to pressure from all sides of society, especially the government, when it comes to tax revenue. So this political dispute, of narratives, is inherent to the relationship between taxpayers and the tax authorities”, says Medeiros.

From the point of view of the application of tax law, he says he disagrees with many of the decisions, but does not necessarily see political action by ministers of the superior courts.

“I would say that, in the moment of tension we are in, the disputes for collection have become more incisive. And when that happens, the government has a very strong dialogue with the Supreme Court, and this ends up influencing decisions, but this is part of the democratic game, it is part of the dynamics of the functioning of the Judiciary, especially in Brazil”, he says.

Rafael Veja, a partner at Cascione Advogados, has a similar opinion. “It was a good semester for the government, but the game played was legal. The result does not justify any speculation of excessive influence on the judicial machine”, said the lawyer to “Valor”.

He said, however, that some judgments were surprising due to their speed, and that the court should have waited a little longer. “The STF giving the final word and being the first to give the word is a little unusual”, he evaluated.

Source: Cascione Advogados e Machado Associados