The Federal Supreme Court (STF) has upheld the “breaking” of res judicata in tax matters. This means that it has authorized the retroactive collection of taxes not paid in the past by virtue of a final court ruling. The Court also did not accept the motions of companies seeking to modulate the effects of the Supreme Court’s decision on the payment of CSLL (Social Contribution on Net Profits).
In a February 2023 decision, the Court had already established that taxpayers who obtained a favorable decision authorizing them not to pay CSLL should pay the tax again from 2007 (the date the contribution was recognized as constitutional). In the extraordinary appeals filed (Nos. 949.297 and 955.227), the companies requested that the time frame be from February 13, 2023.
However, when analyzing the issue, the STF applied the understanding that decisions take effect from the publication of the judgment minutes, legitimizing the collection of CSLL from 2007 onwards. Despite the contrary outcome, the Court held that taxpayers who have already obtained favorable decisions not to pay the contribution should not be penalized, which rules out the application of punitive or late payment fines on those who did not pay based on the decisions in force until then.
The removal of the fines served to reduce the financial impact on companies, which will have to pay the contribution retroactively. It is worth mentioning that taxpayers must make immediate payment, respecting the CSLL due dates for each regime (real profit or presumed profit), including interest and monetary correction for the period.
Taxpayers still have the option of paying these debts in installments without discounts. On the other hand, those who have paid over the years will not be entitled to a refund of the fines.
The unfavorable decision represents a significant milestone, not only because of the billion-dollar impact on companies that have had their decision overturned, but also because it relativizes res judicata in ongoing relationships. This consequently offends the principle of legal certainty that governs all administrative and judicial decisions.
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