Source: Valor Econômico - 11/10/2010

Not even the Attorney General's Office of the National Treasury (PGFN), which acts in defense of the Union, and federal government companies, such as Petrobras, escape the losses generated by the back and forth of judicial decisions handed down by higher courts. One of these cases is about to be tried by the Federal Supreme Court (STF). The constitutionality of the retroactivity of the effects of Complementary Law No. 118 of 2005 is discussed in the process. The rule established a period of five years - and not more than ten - for interested parties to request amounts unduly paid to the Tax Authorities. With that, the so-called “five plus five” thesis, accepted by the courts for years, falls apart. The consequence is that thousands of taxpayers who have benefited from decisions of the Superior Court of Justice (STJ) may have to review balance sheets, investments and contracts.

According to experts who participated in the XNUMXth International Congress of Tax Law in Pernambuco, in addition to the complexity of the country's tax rules, legal uncertainty would be one of the reasons that would surprise investors in Brazil.

For the attorney of the National Treasury, Denise Lucena, the agency also suffers from the lack of legal security, as there are cases that are contrary to the tax authorities. “And on our side, there is another aggravating factor, which are ordinances and normative instructions, which give rise to different interpretations by the Judiciary”, he says. According to her, the enormous amount of rules, the lack of clarity and objectivity of the laws lead to different interpretations by the Judiciary.

One of the causes for the changes is the change in the composition of the courts, due to the ministers' pensions. For Petrobras' legal tax manager, Daniel Hora do Paço, however, a new decision can only take effect from that moment on. “The Supreme Court has decided on closed issues. It is okay to change the rules of the game, but not for the past ”, says Paço.

According to the lawyer Mizabel Derzi, from Sacha Calmon & Mizabel Derzi Consultores e Advogados, when asked to analyze the constitutionality of Complementary Law 118, the Supreme Court could only decide whether there is retroactivity or not, but not review the STJ's interpretation. She argues that legal uncertainty leads to distrust of the judiciary and the small business owner is the most penalized.

Another case remembered by tax experts is the judgment of the constitutionality of the collection of Cofins from professional societies. In 2003, the STJ issued Precedent No. 276, which exempted these companies from payment. However, in September 2008, the Supreme Court decided that the payment of the tax was constitutional. “As the STJ recognized the exemption, with the change of understanding, companies that were harmed by having acted according to the STJ's summary had to join Refis”, says lawyer Mary Elbe Queiroz, president of the Pernambuco Institute of Tax Studies (Ipet ) and director general of the Congress.

Binding overviews and repetitive appeals also lead to legal uncertainty, according to experts. "There is a tendency in the STF and STJ to move away from tax legal moralism", evaluates the retired STJ minister, José Augusto Delgado. He says that today there are more than 30 binding overviews. "With the creation of the binding summary, the IRS celebrates the reduction in the number of appeals in the courts," he says. The same criticism is made by Delgado in relation to repetitive resources. For him, these appeals end up leading some particular lawsuits to be judged in a mass way.

One of the understandings applied by the courts to change the meaning of already pacified issues is to characterize the situation under debate as a “continuous” legal relationship. Article 471 of the Civil Procedure Code (CPC) determines that no judge will decide decided matters again, except in the case of a “continuous” legal relationship, and a change in the state of fact or of law will occur. According to the lawyer and deputy mayor of Salvador, Edvaldo Brito, the federal regional courts, the STJ and the Supreme Court have already changed their position in several discussions based on this provision.