STF suspends STJ analysis of the inclusion of presumed ICMS credits

The First Section of the Superior Court of Justice (STJ) began this Wednesday (26) with the judgment on tax benefits that could yield around R$ 90 billion to the public coffers. But Minister André Mendonça, of the Federal Supreme Court (STF), determined the suspension of the analysis of the action. Mendonça granted an injunction (provisional decision) at the request of the Brazilian Agribusiness Association (Abag), which argued the risk of a sudden increase in the tax burden on companies. According to the minister’s decision, if the STJ has started the trial, it should not produce legal effects until the Supreme Court decides on the matter. Upon receiving information about Mendonça’s preliminary decision, the STJ ministers interrupted the analysis of the case, but after a brief deliberation they decided to continue the trial, which until now is still in progress with the oral support of the parties. The president of the First Section of the STJ, Minister Sergio Kukina, said that the collegiate was informed of Mendonça’s decision, but that he still opted to continue the trial, considering, also, “that this injunction must still be submitted to the highest collegiate of the Supreme”. Understand The STJ will define a common understanding to be applied on the repetitive resources of the inclusion or not of presumed credits of the Tax on Circulation of Goods and Services (ICMS), granted by the states and the Federal District, in the calculation basis of the Integration Program (PIS) and the Contribution for the Financing of Social Security (Cofins). According to calculations by the economic team, if there is a decision favorable to the Union, it would represent an increase of R$ 88 billion in federal revenue. In his decision, Mendonça argues that the matter is also being analyzed by the Supreme Court, through an extraordinary appeal with recognized general repercussions, that is, a case whose outcome should serve as a parameter for all processes of the type. He understands that there would be a risk that, with the decision of the STJ, the cases on the subject in Justice would be concluded even before the Supreme Court deals with the issue, which is why the judgment in the superior court must be suspended.

Agência Brasil