Applications for mandamus are widely used to litigate tax issues, and are found to be attractive for their swift processing and the absence of costs for loss of suit. On the other hand, there are a number of procedural issues that must be carefully assessed in order for applications to be effective, such as pre-established evidence, their own individual time limits, and the applicable rule of jurisdiction, which deserves specific comments.
Traditionally, mandamus is sought against the functional head of the authority deemed abusive, identified as the party responsible for the act contested. In federal tax matters, this authority is usually the office of the Federal Revenue Service of the taxpayer’s tax jurisdiction. This is safe conduct, aligned with the general rule of jurisdiction established in the Code of Civil Procedure and with the principle of the natural judge (article 5, III, of the Federal Constitution).
Often, there is concomitance between the location of the government authority and applicant, which facilitates application of the rule of jurisdiction. However, there are cases where the localities are different, or when there are even different parties involved subject to differing jurisdictions, which adds complexities in identifying the competent venue and in the conduct of proceeding.
The case law on the subject has matured, mainly under the purview of the First Section of the Supreme Court, which is abandoning the current that limited the jurisdiction to assess an application for mandamus to the location of the government authority.[1]
According to the understanding that is developing in the High Court,[2] the jurisdiction over applications for mandamus brought against an act committed by a federal public authority must follow the list of Article 109, § 2, of the Federal Constitution,[3] which assigns to the applicants the power to choose among their domicile, the Federal District, or, further, the place of the act/fact that gives rise to the claim.[4]
The change was driven by the judgment in RE No. 627.709/DF, handed down by the Supreme Court under the system of general repercussion (article 543-A, § 1, of the Code of Civil Procedure of 1973). This leading case discussed the application of Article 109, § 2, of the Federal Constitution federal authorities. The doubt lay in the fact that the provision expressly dealt with "cases brought against the Federal Government", without any mention of the indirect public administration, of which the municipalities are part.
In that judgment prevailing position was that the objective of the constituent assembly in introducing the constitutional provision in question was "to facilitate access to the judiciary for parties when litigating against the Federal Government", which would have better conditions to litigate in a venue other than its head office, considering its organizational structure and the procedural advantages which it enjoys. Because it believes that these same premises apply to federal authorities, the Supreme Court acknowledged that they are also subject to Article 109, § 2, of the Federal Government.
While it is possible to consider the judgment of the leading case in question to have driven the renewal of the case law of the Supreme Court, as even previously the Supreme Court had already recognized the possibility for applicants to choose the venue of their domicile to file an application for mandamus.[5]
In those decisions, the logic prevailed that the rule of jurisdiction would apply to any and all actions brought against the Federal Government, including mandamus actions. As the Constitution made no distinction regarding the nature of the actions brought against the Federal Government, it would suffice for it to be a defendant for the applicant to choose one of the jurisdictions provided for in Article 109, paragraph 2, of the Federal Government.
In this jurisprudential framework, the First Section of the Supreme Court has applied the rule of jurisdiction of Article 109, § 2, of the Federal Constitution to mandamus actions, recognizing the right conferred on applicants to opt for the jurisdiction of their domicile.
Among the judgments dealing with the subject, the judgment of CC No. 153,878/DF, which, when dealing with a topic with a focus on mandamus actions, clarifies that this provision " does not distinguish between the various kinds of actions and procedures provided for in the procedural legislation, which is why the fact that it is a mandamus action does not prevent the applicant from choosing, among the options defined by the Constitution, the most convenient venue for the satisfaction of their claim. The constitutional order, in this respect, aims to facilitate access to the judiciary for parties litigating against the Federal Government".
It is curious to note that, when applying the constitutional rule under analysis, these judgments deal with the possibility of filing in the claimant's home, failing to address the other scenarios also mentioned in the constitutional provision. The highlight here is the possibility of filing in the Federal District, as an alternative to the place of domicile.
Although this choice is also supported by the prevailing reasoning, the topic is not addressed by this perspective, which allows questions as to whether there is effective matching of all the constitutional options mentioned therein.
On the subject, the First Section of the Federal Court of Appeals for the 1st Circuit[6] has already positioned itself in the same sense as the understanding established by the Superior Courts, reaffirming the option conferred on applicants to opt for the venue of their domicile when the federal public authority is sued. However, as in the precedents of the Supreme Court, the issue has been mostly faced in the light of the applicant's domicile, without addressing the other scenarios provided for in Article 109, § 2, of the Federal Constitution (place of the act or fact that originated the claim, where the thing is located, or in the Federal District).
It is undeniable that this jurisprudential change represents a real advance in favor of access to justice and tends to evolve to clear the possibility for the claimant to choose, strategically, the place where he intends to file the action, whether in his home or even in the Federal District, to the detriment of the traditional position that suit should be brought in the place where the functional office of the authority whose act is being contested is located.
[1] AgRg no AREsp 721.540/DF, AgRg no MS 21.337/DF.
[2] CC 169.239/DF, AgInt no CC 163.905/DF, CC 166.116/RJ, AgInt no CC 153.878/DF, AgInt no CC 154.470/DF, AgInt no CC 148.082/DF, AgInt no CC 153.724/DF, AgInt no CC No. 153.138/DF, AgInt no CC No. 149.881/DF, AgRg no CC No. 167.534/DF, CC No. 163.820/DF.
[3] Art. 109. Federal judges are responsible for hearing and deciding: (...)
- 2 - The cases brought against the Federal Government may be apart from the judicial section in which the plaintiff is domiciled, where the act or fact that gave rise to the claim or where the thing is situated, or even in the Federal District. (...)
[4] The current Code of Civil Procedure has a similar guideline in the sole paragraph of its article 51.
[5]AgRg at RE 509.442/PE, AgRg no RE 599.188-AgR/PR, RE 171,881/RS.
[6] cc 1037291-51.2020.4.01.0000cc 1027286-67.2020.4.01.0000cc 1030723-19.2020.4.01.0000.
