By unanimous decision, the 2nd Panel of the Superior Court of Appeals (STJ) recognized the illegality of the early revocation of the tax incentive provided for in Law 11,196/05, known as the Asset Law. Through the Digital Inclusion Program, the law zeroed the PIS and Cofins rates levied on the revenues of retail companies in the sale of certain computer products. The decision was made on June 21, in the judgment of Special Appeal 1.987.675/SP.
The tax incentive had its validity extended until December 31, 2018, by Executive Order 656/14, converted into Law 13,097/15. However, months later, PM 690/15, converted into Law 13,241/15, prematurely revoked the tax exemption granted by the Asset Law, causing serious losses to taxpayers who had met the legal requirements to qualify for the benefit.
In the judgment, the justices found that premature revocation of the tax incentive violates article 178 of the CTN (National Tax Code), which prohibits modification or revocation of an exemption when granted for a certain period of time and under certain conditions.
The Asset Law conditioned enjoyment of the benefit on a series of counterparts to be observed by both industry and retail. Its early revocation is, therefore, illegal, in attention to the principles of legal security and good faith of the taxpayer who adhered to the tax policy.
The 2nd Panel's position is extremely important, since it consolidates the STJ's case law on the subject. In June of 2021, in judging analogous cases, the 1st Panel also accepted the taxpayers' claim, recognizing that the tax incentive granted by the Asset Law could not be revoked before the deadline determined by the law.
Although this is not a judgment submitted to the system of repetitive appeals, the STJ's uniform understanding should guide the judges in similar cases, especially in attention to article 926 of the CPC (Code of Civil Procedure), which imposes on the courts the duty to keep their case law stable, complete, and consistent.
Besides representing an important precedent for identical cases, this understanding reaffirms the traditional position of the STJ to the effect that the State must guarantee protection to the legitimately created expectation that the benefit will be maintained for a certain period. This ensures predictability and prevents taxpayers who have acted in good faith from being disadvantaged by legislative changes.
The Federal Supreme Court (STF) has been positioning itself to the effect that the competence to examine the issue lies with the STJ, since it would demand analysis of infra-constitutional legislation. Any offense against the Federal Constitution would be merely reflexive. In this scenario, the final decision on the matter must be made by the STJ.
