The Federal Supreme Court (STF) has been bombarded in recent years with heavy criticism of the conduct of its decisions, especially with regard to the latest decisions in the tax area.
Are these blows valid? Probably, if we take for example the shock given to the legal system last February when it dropped the bomb on the relativization of res judicata, still pending the publication of the respective decision. But, in some cases, the STF gets it right and the blows should be replaced by applause, serving as encouragement.
Along with the criticisms, at the end of 2022, STF improved its Internal Regulations with the approval of Regimental Amendment No. 58/2002, which came into force this year. Among the changes brought about by the new norm, which includes the limitation of the period of review granted to the ministers during trials, we highlight the need that, in urgent cases, precautionary measures must be endorsed by the Plenary, in order to avoid serious damage or guarantee the effectiveness of the previous decision.
This modification shows the strengthening of collective decisions compared to individual decisions, avoiding numerous injunctions to be indefinitely waiting for judgment, since they will now be submitted to the immediate appreciation of the collegiate.
This change can already be observed in the recent decision of Minister Dias Toffoli last April 3rd, which, when analyzing and granting the injunction requested by the National Confederation of Industry in the Direct Action of Unconstitutionality (ADI) nº 7.363/GO, included the lawsuit for a plenary referendum in the virtual session that began on April 14th, which was ended yesterday without the referendum.
The Rapporteur accepted the request to suspend the effectiveness of the legislation of the State of Goiás that instituted the compulsory contribution due to the State Infrastructure Fund (Fundeinfra), due on the value of commercial operations carried out by companies benefiting from a special regime, tax incentive, export control and backward tax substitution, known as “Agro Tax”.
This contribution represents a significant portion of ICMS (State Tax), levied on the value of the operation, intended to fund, as a financial resource, the economic development of the State. The state requirement comes up against unconstitutionalities, such as the impossibility of conveying tax revenue to state bodies, creating a new tax with the same taxable event and calculation basis as the ICMS without by means of a complementary law, in addition to removing the immunity of export operations and the acquired right of those who already have a tax benefit granted at a cost.
The collegiate decision understood that such requirement would be voluntary, authorizing its maintenance and postponing the appreciation of the other defense arguments to when the merits of the discussion are judged.
The granting of the injunction that temporarily suspended the Government of Goiás’ claim to demand the Agro Tax served as a warning to other states regarding abuses instituted with a view to raising revenue. And the attitude of the Minister Rapporteur of the ADI reflected the new posture of the STF in the handling of urgent cases that we hope will, from now on, be faster, especially in tax cases that drag on for years awaiting definition by our Supreme Court.
