Revocation of tax benefit Unanimous decision with general repercussions reinforces taxpayer protection and legal certainty in cases of indirect tax increases
The Brazilian Supreme Federal
Court (STF) unanimously decided that the principle of tax precedence also applies to the revocation or reduction of tax benefits, when this change results in an indirect increase in the tax burden. The decision was made in general repercussion, which means that it must be observed by all instances of the Judiciary and in judgments within the scope of the Administrative Council of Tax Appeals (Carf).
The measure represents an important
victory for taxpayers, especially for companies that list to data were facing state fines based on the immediate revocation of tax incentives.
Tax precedence is provided for in article 150, section III, of the Federal Constitution. This principle establishes that a new tax charge or rate increase can only come into effect after a certain period, as a way of avoiding surprises for the taxpayer:
Annual prior notice: valid only in the fiscal year vk video is back on top following the publication of the standard;
Ninety-day prior notice: valid 90 days after publication.
>The application of these rules provides predictability to the tax relationship, allowing companies and citizens to plan financially in the face of legislative changes.
The case analyzed by the STF
The discussion originated in an appeal by the State of revocation of tax benefit Pará against a decision by the State Court of Justice (TJPA) that annulled a charge of lack data Tax on Circulation of Goods and Services (ICMS) made to the company Souza Cruz (currently BAT Brasil), based on the revocation of a tax benefit provided for in State Decree No. 4,725/2001.
This decree established a differentiated
tax rate (16.6667%) for domestic transactions involving tobacco products. The benefit was revoked by State Decree No. 668/2013, indirectly increasing the company’s tax burden for the period of March and April of that year. The company, however, claimed that the revocation disrespected the principle of prior notice and took legal action.
The TJPA accepted the argument, understanding that the state tax authorities had acted while the constitutional protection of prior notice was still in force. The State, in turn, appealed to the STF with the argument that prior notice would only apply to the creation or direct increase of taxes, and not to the suppression of incentives.
The STF decision reported by Minister
Luís Roberto Barroso. Rejected the State’s thesis, highlighting that the revocation of tax benefits. By altering the quantitative elements of the incidence hypothesis. Represents an indirect increase in the tax. Which requires respect for the constitutional deadlines of the previous period.
“The principle of prior notice seeks to ensure the predictability of the tax relationship. In order to prevent the taxpayer from being surprised by a sudden increase in charges, without the possibility of financial planning”, stated Barroso.
The thesis established by the Supreme Court was as follows:
“The principle of general and nonagesimal tax precedence. Revocation of tax benefit applies to cases of reduction or suppression of benefits or. Tax incentives that result in an indirect increase in taxes. Observing the constitutional determinations and exceptions for each tax.”
The decision was unanimous
Only Minister Luiz Fux did not participate. As he declared himself unable to do so. His son acted as attorney in the case. Ministers Flávio Dino and Dias Toffoli made reservations, highlighting that:
The prior notice does not apply to taxpayers acting in bad faith who have obtained incentives unduly;
There are exceptions. Such as in the case of IOF, IPVA and IPTU. Which follow specific rules.