Leonardo Martins, Carolina Stephanie Borges de Amorim and Pedro de Lima Souza Alves
The Federal Supreme Court (STF) recently reaffirmed its position in relation to the unconstitutionality of the institution of a fire safety fee by the states. The decision on the subject was handed down in the judgment on a motion to resolve a divergence in the record of Extraordinary Appeal No. 1.179.245/MT.
As shown in the opinion of the Justice Carmen Lucia, the Federal Supreme Court ruled that "the public service of fire fighting and prevention cannot be taxed as a fee because it is a general and indivisible service related to public safety".
The judgment, which refers to the fee charged by Mato Grosso, follows the line of decisions established on previous occasions by the Federal Supreme Court, with an emphasis on the decisions issued in Extraordinary Appeal No. 643.247/RG and in direct actions of unconstitutionality No. 2,424/EC and 2,908/SE, in which the Federal Supreme Court found in favor of:
- the impossibility of institution of a fee aimed at the prevention of fires by municipalities;
- the exclusivity of the tax as a fee suited to pay for public security activities; and
- that the annual fire safety fee would have as a triggering fact the provision of a general and indivisible essential activity by the Fire Department, being of generic utility and to be funded by the revenue from
The position of the Federal Supreme Court has been replicated by the country's circuit courts. The Court of Appeals of Mato Grosso, for example, maintained in limine injunctive relief regarding a direct action of state unconstitutionality in order to suspend the collection of the Fire Safety Fee (Tacin) since January of 2020.
Despite the understanding in the case law, many states still require the annual fire safety fee for the Fire Department. This is the case, for example, of the State of Rio de Janeiro, where the fee is calculated based on the square footage of residential and non-residential properties, as provided for in Decree No. 3,856/80.
