Bulletin – July 22 | Tax law – Tax authorities

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FEDERAL SUPREME COURT MAY LIMIT CORRECTION OF ISS DEBTS TO SELIC RATE

The Federal Supreme Court (STF) has recognized the broad scope of Extraordinary Appeal No. 1,346,152 (Theme No. 1217), in which the Court will determine whether Communal Governments are required to collect interest on tax debts in the limit of the rate adopted by the federal government, which is the “SELIC rate”.

The Supreme Court has already established that state governments can determine monetary correction rates and late interest rates on their tax credits, but those rates should be limited to SELIC. This is also understood by some courts, for example in São Paulo, where the case law is largely favorable to taxpayers.

Now, the Supreme Court will do the same analysis with regard to municipalities. Acknowledging the general repercussion of the theme, Judge-Rapporteur Luiz Fux pointed out that the issue is common to several cities in Brazil: “The dispute, obviously, is not limited to the legislation of the municipality of São Paulo, since the constitutional exegesis set in the system of precedents will guide the collection of tax credits in all municipalities”.

Indeed, it is common for municipalities to impose a monetary correction and an interest rate (usually 0.5% to 1% per month) on their tax debts, which in many cases leads to an exorbitant increase, much higher at SELIC.

This definition is relevant, so there is greater uniformity in the treatment of tax debts across the country.

SUPREME FEDERAL TRIBUNAL INCLUDES IN THE ROLL OF 08/31 THE REQUEST FOR CLARIFICATION ON THE COLLECTION OF SOCIAL CONTRIBUTIONS ON THE THIRD OF HOLIDAYS

The Supreme Court has entered in the list of the trial of 08/31/2022 the request for clarification which is pending analysis in extraordinary appeal no. 1,072,485. The discussion concerns the deduction of the social security contribution from the constitutional third of the leave enjoyed by employees.

In 2020, the Court overturned historic case law – verified in both superior courts (Federal Supreme Court and Superior Court of Justice) – and decided on the legitimacy of assessing these contributions on this benefit received by employees in Brazil . Against this decision, 6 requests for clarification were presented by different entities and by the taxpayer concerned, calling into question the change in case law and arguing for the limitation of the effect of such a decision.

Thus, this decision is relevant, because it can define whether many taxpayers who have not collected such taxes in the past, on the basis of a hitherto favorable agreement, can be invoiced by the tax administration.

THE FEDERAL SUPREME COURT BEGINS TO REND A JUDGMENT ON THE CONSTITUTIONALITY OF STATE FEES FOR THE SUPERVISION OF MINING ACTIVITY

The Federal Supreme Court (STF) launched the trial of three direct actions of unconstitutionality (ADI 4785, 4786 and 4787) against the laws of the states of Minas Gerais, Pará and Amapá.

These laws enacted the levying of control fees during the supervision and inspection of research, mining, exploration and exploitation of mineral resources (TFRM).

Taxpayers claim that by creating such taxes on mining activity, the laws violated the federal government’s jurisdiction to legislate on such activity. Furthermore, they argue that the rate has confiscatory effects because the amount charged exceeds the costs necessary to carry out the inspection of the sector.

On the other hand, the states claim that they have the power to monitor mining activity and that there is no confiscatory effect because the introduction of the royalties has not affected the sector, which continues to develop oneself. Furthermore, they argue that the rates are an extra-fiscal instrument to incentivize more technological and sustainable mining exploration and to prevent further environmental disasters.

Although appearing as a specific theme, the analysis of this type of theme is still relevant to assess the Supreme Court’s understanding of tax jurisdiction, which may possibly apply to other similar discussions.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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