FEDERAL SUPREME COURT MAY LIMIT THE CORRECTION OF DEBTS OF ISS TO THE SELIC RATE
The Federal Supreme Court (STF) recognized the general repercussion of THE Extraordinary Appeal No. 1.346.152 (Theme No. 1217), in which the Court will define whether the Municipal Governments are bound to charge interest upon tax debts limite to the rate adopted by Federal Government, which is the “SELIC rate”.
The Supreme Court has already established that state governments can determine the monetary correction rates and interest rates of late payment on their tax credits, but these rates should be limited to the SELIC. This has also been the understanding in some Courts of Justice, for example, São Paulo, where the jurisprudence is largely favorable to taxpayers.
Now, the Supreme Court will make the same analysis in relation to the municipalities. Recognizing the general repercussion of the theme, Reporting Justice Luiz Fux pointed out that the issue is common to several cities in Brazil: “The dispute, in all evidence, is not limited to the legislation of the municipality of São Paulo, because the constitutional exegesis set in the system of precedents will guide the collection of tax credits in all municipalities”.
Indeed, it is common for municipalities to charge monetary correction and an interest rate (usually 0.5% to 1% per month) upon their tax debts, which in many cases results in an exorbitant increase, much higher than SELIC.
This definition is relevant, so there is greater uniformity in the treatment of tax debts throughout the country.
FEDERAL SUPREME COURT INCLUDED IN THE TRIAL DOCKET OF 08/31 THE MOTION FOR CLARIFICATION ON THE LEVYING OF SOCIAL SECURITY CONTRIBUTIONS UPON THE ONE THIRD OF VACATION
The Supreme Court included in the trial docket of 08/31/2022 the motion for clarification that is pending analysis in the Extraordinary Appeal No. 1.072.485. The discussion deals with the levying of the social security contribution on the constitutional one-third of vacations entitled to employees.
In 2020, the Court reversed the historical jurisprudence – verified in both Superior Courts (Federal Supreme Court and Superior Court of Justice) – and decided for the legitimacy of the assessment of these contributions upon such benefit received by employees in Brazil. Against this decision, 6 motions for clarification were presented by different entities and by the taxpayer involved, questioning the change in the case-law and pleading for the limitation of the effect of such a decision.
Thus, this judgment is relevant, because it can define whether many taxpayers who did not collect such taxes in the past, based on the until then favorable understanding, may be charged by the Tax Authorities.
FEDERAL SUPREME COURT BEGINS JUDGMENT ON CONSTITUTIONALITY OF STATE FEES FOR SUPERVISION OF MINING ACTIVITY
The Federal Supreme Court (STF) initiated the trial of three Direct Actions of Unconstitutionality (ADIs 4785, 4786 and 4787) against state laws of the states of Minas Gerais, Pará and Amapá.
These laws enacted the charge of control fees upon monitoring and inspection of research, mining, exploration, and exploitation of mining resources (TFRM).
Taxpayers claim that by creating such taxes on mining activity, the laws violated the Federal Government’s jurisdiction to legislate on such activity. In addition, they argue that the rate has confiscatory effects because the amount charged is higher than the necessary costs to carry out the inspection upon the sector.
On the other hand, states claim that they have authority to monitor mining activity and that there is no confiscatory effect because the implementation of the fees has not affected the sector, which continues to expand. Furthermore, they argue that the rates are an extra-fiscal instrument to induce more technological and sustainable mineral exploration and to prevent further environmental disasters.
Despite appearing to be a specific theme, the analysis of this type of theme is always relevant to evaluate the understanding of the Supreme Court on tax jurisdiction, which may eventually apply to other similar discussions.
For further informations, contact:
José Flávio Pacheco
Luís Flávio Neto