O limite da coisa julgada em âmbito tributário: uma análise acerca do julgamento dos temas 881 e 885 do Supremo Tribunal Federal

Abstract

What is the limit of res judicata in the tax sphere according to the judgment handed down by the Federal Supreme Court in General Repercussion Topics 881 and 885? In line with this question, the aim is to develop reflections on the effects of the STF decisions on constitutionality control, whether concentrated or diffuse, in tax matters. The debate began with the emergence of the Social Contribution on Net Income, established by Law 7,689 of 1988, which quickly suffered allegations of unconstitutionality. In the 1990s, some companies obtained court decisions in which the rule was, in fact, declared unconstitutional, exempting them from paying this tax. These decisions became final and binding around 1992. However, years later, more precisely in 2007, the STF, when judging ADI No. 15/DF, in the context of concentrated control, declared the constitutionality of the referred rule. The following questions then arise: should taxpayers exempted from payment return to collecting the tax or would they be protected by the mantle of res judicata obtained since 1992? How far do the decisions handed down by the Supreme Court go in the face of divergent interpretations regarding the same legal instrument? These questions were only answered through the judgment of Themes 881 and 885, on February 8, 2023. From the perspective of the specific case mentioned herein, we will seek to draw a timeline of the events that gave rise to the discussion brought here. We believe that this study is capable of helping to understand the imbroglio that has existed surrounding the collectibility of CSLL since the enactment of its founding law until the current developments. In another turn, the present incursion seems useful to encourage the critical analysis of the judgments of the Constitutional Court in order to stimulate a greater follow-up of the interpretations undertaken by the Ministers of the STF.