FEDERAL REGIONAL COURT OF THE 3RD REGION ESTABLISHES THESIS ON PROCEDURE TO PIERCE THE CORPORATE VEIL (IDPJ) IN TAX FORECLOSURES
The Special Panel of the Federal Regional Court of the 3rd Region decided, in a locally biding precedent analyzed on May 20, to expand the current interpretation of the Superior Court of Justice (STJ) regarding the suitability of the Motion to Pierce the Corporate Veil (IDPJ) for tax foreclosures.
The Court decided that such motion is mandatory to establish the liability in tax collections in the following scenarios: patrimonial confusion; irregular dissolution; formation of an economic group; abuse of rights; abuse of powers or violation of law, contract or bylaws; as well as to reach people who have a common interest in the triggering event of the tax obligation.
Thus, at least in relation to federal tax foreclosures in São Paulo, the inclusion of a partner or manager as co-responsible in an ongoing tax foreclosure will depend on the previous IDPJ proceeding, in which the party will have the opportunity to present defense before inclusion in the tax foreclosure.
Currently, the matter has different positions within the STJ: the 1st Panel understands the IDPJ is applicable only in cases of deviation of purpose or patrimonial confusion; while the 2nd Panel stands for the complete incompatibility of the IDPJ with the Tax Foreclosures Law.
FEDERAL REGIONAL COURT EXCLUDES “ONE-THIRD OF VACATION BENEFIT” FROM THE CALCULATION OF THE CONTRIBUTION TO SENAI
The Federal Regional Court of the 3rd Region (TRF-3) decided to allow the exclusion of the 1/3 vacation benefit paid to employees from the calculation basis of contributions to SENAI (levied on payroll). The decision applies the precedent of the Superior Court of Justice (STJ), even after the Federal Supreme Court (STF) has ruled in the opposite direction.
The STF had already defined, with binding effects, that the collection of social security contributions on the 1/3 of vacation is constitutional. A motion for clarification will still be judged on the limitation of the effects of such decision (modulation of effects). But, in February 2014, the STJ had already decided, also with binding effects, that such taxation would be illegal.
According to the reporting judge Denise Avelar, the judgment of the STF has binding effects, but the STJ’s precedent also does. Thus, the vote concluded that the decision of the TRF-3 would not be violating the position of the STF because it would not be declaring the unconstitutionality of the taxation. And, as the STJ decided that this charge is contrary to infra-constitutional law, it could not be maintained. The decision was unanimous, and the National Treasury has already filed an appeal against the decision.
ISS COMPRISES THE BASIS OF SOCIAL SECURITY CONTRIBUTION ON GROSS REVENUE (CPRB), ACCORDING TO THE SUPREME FEDERAL COURT
In a session held on June 18, the Plenary Session of the Supreme Court (STF) ruled, by majority of votes, that the ISS should be included in the social security contribution on gross revenue (Item 1,135 of the general repercussion list).
Most of the Justices followed the vote of Alexandre de Moraes, who applied a similar understanding of another general repercussion (RE 1,187,264, Topic 1,048), when the STF recognized that another tax, the ICMS (State VAT), should be included in the CPRB calculation.
At the time, in February of 2021, most Justices followed the vote of Alexandre de Moraes to accept the argument that the CPRB would represent an optional tax benefit. Therefore, it would not be possible to withdraw ICMS from the collection basis of a benefit voluntarily chosen by the taxpayer.
In our view, however, this decision ignores that, during part of its existence, the CPRB was mandatory for taxpayers and, therefore, it could not be considered a tax benefit.
SUPREME COURT DISMISSES MOTIONS RELATED TO THE INCOME TAXATION OF THE INTEREST DUE UPON LATE PAYMENT OF WAGES
By majority of votes, the Supreme Court (STF) denied motion for clarification filed by the National Treasury and the Municipality of São Paulo, which intended to change a previous decision of the Court, which ruled for the non-levy of income taxes on interests received in case of late payment of wages.
According to the reporting Justice, Dias Toffoli, the Constitution does not allow the income taxation on amounts that “do not add to the creditor’s patrimony”. For the municipality and the National Treasury, there would have been an omission regarding the need for modulation of effects and the decision should not be applicable to the past. However, most Justices followed the reporting Justice’s vote, to deny the limitation of the effects as such decision would be reaffirming the previous case law on the matter, already stated by the STF and the Superior Labor Court.
Therefore, this decision represents an important precedent, especially if the reasoning is applied by analogy to other interests on late payment, such as those levied on the refund of overpaid taxes.
SUPERIOR COURT OF JUSTICE ALLOWS CHARGE OF INTEREST ON PENALTIES FORGIVEN IN REFIS PROGRAM
The 1st Section of the STJ decided, in a session held on June 23, that the interest on the penalties waived by the tax recovery program (REFIS) enacted in 2009 remains due, even though the penalties themselves have been eliminated.
The Justices discussed the interpretation of Law 11,941/2009, which enacted the so called “Crisis REFIS” and served as the basis for the edition of most of the subsequent amnesty programs. The discussion relates to whether the interest on the penalties would be reduced in the same proportion (since the fine itself had a 100% reduction); or calculated separately, receiving only the 45% discount specified by law to the interest in general.
Most Justices followed the terms of the reporting Justice, Herman Benjamin. For him, the interest related to the penalties remains due even though the penalty has been forgiven, since there is a legal provision for a discount of 45% of interest on joining the program.
Despite not having binding effects, it is an important negative precedent for taxpayers who joined that REFIS and other similar programs.
SUPREME COURT REJECTS THE FEDERAL UNION’S PREFERENCE IN THE JUDICIAL COLLECTION OF TAX DEBTS
The Plenary of the Supreme Court (STF) decided, by majority of votes, that the Constitution does not embody provisions of the National Tax Code and the Tax Foreclosure Law that establish the Federal Union’s preference in relation to States, Municipalities and the Federal District in the judicial collection of tax and non-tax credits. The decision, rendered in the records of ADPF 357/DF, canceled the Summary of Ruling no. 563 of the STF, which provided the opposite.
According to the Justices, the Constitution, in its article 18, considers all federated entities as equals, so that the establishment of a hierarchy in the judicial collection of public credits contradicts the federative pact by inducing that the Union would have greater prevalence and importance than the other entities.