Tax Newsletter: remuneration of federal judicial deposits, ruling on tax debts for assets acquired outside auction, and STF analysis of general repercussion on new issues
In this Tax Law newsletter you will find the following news:
- Federal Government changes the rules on remuneration of federal judicial deposits
- Superior Court of Justice rules that taxes related to real estate acquired in judicial auction cannot be transferred to the acquirer
- Supreme Court analyzes general repercussion in new themes
Federal Government changes the rules on remuneration of federal judicial deposits
The recent enactment of Law Nº 14.973/2024, which addresses payroll tax relief measures, surprised taxpayers by introducing a provision stipulating that federal judicial deposits will now be adjusted by an index reflecting inflation, although the specific index to be applied has not been defined.
Currently, judicial deposits made in federal courts are updated monthly by the SELIC rate.
It is still unclear whether this change will apply to deposits already made, only to new deposits, or partially to existing deposits, which could lead to a mixed updating of such deposits.
Another potential discussions refers to the legitimacy of such new provision with Constitutional Amendment Nº 113/2021, which provides for the application of the SELIC rate in disputes and judgments involving the Public Treasury.
Taxpayers wait for further legislation to be issued by Federal Revenue Service, which may clarify these issues.
Superior Court of Justice rules that taxes related to real estate acquired in judicial auction cannot be transferred to the acquirer
The First Panel of the Superior Court of Justice (STJ) has ruled that the acquisition of a real estate in a judicial auction prevents the transfer of the tax debts related to such estate to the acquirer.
The Justices determined that the acquisition of property at a public auction is original in nature, meaning that there is no liability for the third-party buyer for tax debts that existed on the property prior to the auction, in accordance with the sole paragraph of Article 130 of the National Tax Code.
The established legal thesis was as follows: "Pursuant to Article 130, sole paragraph, of the National Tax Code, any provision in the auction notice attributing responsibility to the purchaser for tax debts previously encumbering the property at the time of sale is invalid."
Regarding the modulation of effects, the STJ decided that this understanding will only apply to auctions announced after the publication of the judgment's minutes, except for pending legal actions and/or administrative requests, for which the thesis applies immediately. The ruling was published on October 24.
Supreme Court analyzes general repercussion in new themes
The Supreme Federal Court (STF) analyzed the existence of general repercussion in new tax matters. When confirmed, general repercussion requires the Court to rule on the issue with binding effects on all judges and courts. If the general repercussion is denied, the merits of the case is not analyzed by the Court.
- THEME 1331 – ICMS differential rate based on the Complementary Law 87/1996
The Supreme Court decided that there is no general repercussion in Extraordinary Appeal Noº 1.499.539, concerning Theme 1331. The appeal discussed the possibility of charging the ICMS differential rate (ICMS-DIFAL) in interstate transactions related final consumers, based on the Complementary Law 87/1996.
The STF dismissed general repercussion, finding the issue to be purely non-constitutional. Taxpayers allege that the Law 87/1996 would not contain sufficient legal basis for such charge (which would only have occurred after the amendments brought by Complementary Law 190/2022).
- THEME 1333 – Cadastur as a condition for the use of perse
STF ruled that there is no general repercussion in Special Appeal No. 1,517,693, regarding Theme 1333, that discusses the requirement of enrollment before the Cadastur provided for by the Ordinance ME 7.163/2021 as a condition to the use of PERSE.
- THEME 1337 – Application of the 90-day tax anteriority rule in the reinstatement of full PIS and COFINS rates by Necree No. 11,374/2023
STF acknowledged general repercussion in RE 1.501.643, under Theme 1337, but ruled that the Decree 11.374/2023 does not fall under the 90-day anteriority rule, as the Court understood that (i) the reinstated rates had been applied since 2015, and (ii) Decree 11.322/2023, which reduced the rates, was revoked on the day it took effect.
- THEME 1338 – Rescission action against a final decision contrary to the modulation of general repercussion Theme 69/RG (RE 574.706)
STF recognized general repercussion in RE 1.489.562, concerning Theme 1338, and ruled that "the authority of the STF's decision can be imposed even where a prior judicial enforcement order exists, provided a rescission action is filed to adequate the prior decision to the modulation's ruling."
The STF's position in Theme 1338 aligns with the recent STJ's ruling in Theme 1245, which states: "It is possible to file a rescission action to align a pre-May 13, 2021 judgment with the modulation of STF Theme 69."
- THEME 1345 – Inclusion of ICMS in the calculation base of IRPJ and CSLL under the presumed profit regime
STF decided there is no general repercussion in Special Appeal Nº 1.493.235, concerning Theme 1345, as it deemed the matter to involve the interpretation of non-constitutional rules.
This ruling upholds the unfavorable position for taxpayers established by the STJ in Theme 1008, which allows for the inclusion of ICMS in the calculation base for IRPJ and CSLL under the presumed profit regime.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
