Halley Henares: courts do not have to wait for the trial of the liens
Federal Regional Courts (TRFs) and the Superior Court of Justice (STJ) finalized lawsuits in favor of excluding ICMS from the PIS and COFINS calculation base, without waiting for the judgment of the Federal Supreme Court ). With the final res judicata, the Attorney General of the National Treasury (PGFN) can no longer appeal decisions.
After the Supreme Court adjudicated the matter in March 2017, through general repercussions, several courts began to adopt the understanding. The PGFN, however, claims that they should await the examination of the embargoes. In the appeal, he asks that the decision have a deadline to take effect, which would be January this year.
One of the actions was finalized by the TRF of the 3rd Region (SP and MS). The lawsuit (No. 0003777-43.2001. 4.03.6109), presented by the group of concessionaires Vecol Veículos, was stopped (stopped) since 2013, awaiting the judgment of the Supreme Court.
In the case, the PGFN argued that the application of the precedent would be premature. In April, however, the Special Body held that "according to the Code of Civil Procedure (CPC), once the paradigm judgment has been published, exceptional remedies must be denied if the contested decision coincides with that of the higher court" .
According to attorney Halley Henares, Henares Lawyers, who worked on the case with attorney Rafael Simão Cardoso, from the same office, since the STF decision the companies have sought the application of the general repercussion. However, he adds, there are a few cases with a final judgment. "It is not coherent for the courts to await the judgment of foreclosure claims that call for modulation of effects," he says.
In a note, the PGFN informs that the STF judgment generated a scenario of "strong legal uncertainty", especially due to the pending judgment of the embargoes of the declaration and the national non-suspension of the proceedings.
The prosecution affirms that it can propose rescission actions depending on the modulation of effects or the modification of the judgment of the STF. The body does not have the number of lawsuits that have become final, but estimates that, "in the vast majority of cases," there is still no judgment.
In the TRF of the 4th Region there is also a decision with final and unappealable decision (case nº 5057946-71.2016.4.04.7100). In July, the 1st Section unanimously decided that once the paradigm judgment has been published, the president or vice-president of the court of origin will deny a special or extraordinary appeal, and it is unnecessary to await a final and unappealable decision.
In the STJ, a similar decision was made in March (AREsp 380,698). The process was by Telefonica. The request of the Treasury was denied to appeal to the STF or to suspend the progress of the process. The decision cites precedent of the Supreme that authorizes the judgment of identical causes after general repercussion, even without the decree of court of the paradigm.
According to attorney Rafael Machado Simões Pires, from the Machado Simões Pires Advogados office, companies that had no actions on the thesis have requested the exclusion of ICMS on the basis of PIS and Cofins in injunctions. "There are injunctions, decisions of other courts and now res judicata. The cycle is closing, "he says.
Attorney Danielle Bertagnolli, from the same office, claims that the PGFN could file a rescission action - used to challenge a final and unappealable proceeding. But for that I would need some new argument.
According to lawyer Priscila Dalcomuni, of the tax area of Martinelli Advogados, any modulation will not affect the cases that have become final. In a case of a client that was finalized (nº 5004486-89.2014.4.04.7214), according to the lawyer, the calculations of values have already been made and the credit enabled in the Federal Revenue. "The company can already start using credit," he says.