The Second Panel of the Brazilian Superior Court of Justice (STJ) recently issued a significant decision regarding the time limit for the offset of tax credits recognized in final and unappealable judicial decisions. The matter was analyzed in Special Appeal No. 2,178,201/RJ, under Judge Francisco Falcão, involving the National Treasury and the company Termomacaé S.A.
In this judgment, the Judge of the Second Panel, in a departure from previous decisions, ruled that a taxpayer has a period of five years—counted from the date the judicial decision recognizing the right to the credit becomes final and unappealable—to submit tax offset declarations (PER/DCOMP) to the Brazilian Federal Revenue Service.
In the Rapporteur's view, the duration of the time limit—under the former decision—would encourage taxpayers to delay the use of the tax credit resulting from undue payment for as long as possible, as adjusted by the SELIC rate (which is not subject to taxation).
KEY POINTS OF THE DECISION
- Five-year period: The right to request compensation for tax credits recognized by judicial decision must be exercised within five years from the date the decision becomes final and unappealable, in accordance with Articles 168 of the National Tax Code, 1 of Decree No. 20,910/1932, and 74 of Law No. 9,430/1996.
- Suspension of the period: The prescriptive period will be suspended between the filing of the request for credit qualification and its approval by the Federal Revenue, as provided for in Article 82-A of Normative Instruction RFB No. 1,300/2012.
- Submission of PER/DCOMP: All tax offset declarations (PER/DCOMP) must be submitted within the five-year period, discounting the period of suspension during the qualification process.
- Prohibition of indefinite duration of the tax offset claim: The decision set aside the understanding that, once the tax offset is initiated within the prescriptive period, the credit could be offset indefinitely until its exhaustion. The five-year period must be observed for each submission of PER/DCOMP.
PRACTICAL IMPLICATIONS
- Taxpayers who have tax credits recognized by judicial decision must pay attention to the five-year period for submitting PER/DCOMP declarations, under penalty of prescription of credits not used within this period.
- The period during which the request for credit qualification is under review suspends the running of the deadline, but after approval, the period resumes its normal course.
- The decision directly impacts strategies for the recovery of tax credits, requiring greater diligence and monitoring of procedural and administrative deadlines.
Considering that the above understanding is also aligned with the most recent precedents of the 1st Panel of that Court, there is clear evidence of a consolidation of the STJ's (Superior Court of Justice) case law in accordance with the terms outlined above.
Although it is advisable to review the processes of tax credit recognition and compensation—especially those arising from judicial decisions—it is important to highlight that this ruling was not issued under the repetitive appeal system.
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