Tax law

New Tax Provisions declared unconstitutional

by Danilo Santana - Brazilian Writer

 
After 17 years of life, and billions of U.S. dollars improperly collected by public machine, finally, were declared unconstitutional the articles 45 and 46 of Law 8212/91, with the sole paragraph of Article 5. Decree-Law 1569/77.
 
Articles 45 and 46 of Law 8212/91 established that the debits from the only social security contributions would be subject to decay and prescription after 10 (ten) years, at variance with the National Tax Code that established the deadline of 05 (five ) years, in general, for tax credits.
 
The single paragraph of Decree-Law 1569/77, in turn, stated that the administrative measures to close the tax credits and tax executions of small value suspended the course of time prescricional.
 
In summary, the rules declared unconstitutional gave to the State the right to charge the taxpayer claims of any social security contributions, although there was also extended the deadline for the credit of social benefits.
 
The decision was expected by experts in tax law, not because the articles of the law establishes a privilege for the Public without providing equal treatment for creditors of social benefits, but for the sake of conducting legislative failure. The prescription could not have been inserted in the legal world in a standard ordinary considering that the Constitution already provides that only the Complementary Law could have on the general rules under tax.
 
It is true that the adoption of a Complementary Law requires special quorum and, notoriously, is more difficult to conduct in the home of the national parliament. This policy has faced particular importance because it will further discuss the effects that the rules produce.
 
But what really came bringing great indignation to the taxpayer was the other side, the one in which one sees that the standard had the objective effect of unilateral, only in favor of Public Finance, without allowing a treatment isonomy to the other side, in enabling the beneficiaries of social resources were also the period of ten years to claim their rights possible.
 
Therefore considered only these data, the decision of the Supreme Court would be restored to the constitutional provisions and canceled one of the many acts of the executive power, as always, use the weakness of the legislature to try to legitimize their eagerness to rob the pockets of taxpayers.
 
But for the first time was different. Unfortunately different.
 
The Supreme Court, showing that keeps watchful eye for the political consequences, or "interests of the state", even where such potential general interests may violate the right individual taxpayer, there was a well to decide that the declaration of unconstitutionality only take effect with for taxpayers who had been demanding in court. Exactly. The Supreme Court vedou, specifically, the possibility that this decision can produce reflex for those taxpayers who now only wanted to get a refund of contributions improperly charged by Public Finance.
 
In summary the decision takes the following purposes:
Taxpayers are being driven by the Public Finance with executions tax contributions that period declared unconstitutional will not have to pay anything, the process will be terminated.
Taxpayers may have entered in court to seek reimbursement of amounts wrongly paid, get back everything they paid, with interest and monetary correction.
Taxpayers who have never paid to such contributions, and not yet recovered, most also have to pay any penny. However, the taxpayer who sought the value that it was wrongly charged, and that preferred not judge any action to recover the amounts charged too, awaiting the final decision of the Supreme Court, now nothing else can do.
 
Because, although the Supreme Court has recognized the effectiveness of the decision retroactive, was by and for modulating the effects of trial and establish that taxpayers comply, those who have not claimed their legal rights, no longer can do so. That is, the Public will no longer return to taxpayers quiet, or taxpayers who do not have time to exercise their rights, something around seventy billion reais.
 
The problem is that taxpayers can not criticize the decision of the Supreme Court, because it also has its share of blame, because it was inert, lazy in protecting their rights and interests. But of course, you can still claim is the "postal appeal 'without expenses or attorneys fees.
 
For students and lay people, it noted that the "use postal" is the legitimate right of the beaten, exhausted after all the legal possibilities and, as last breath, crying and hugging a pole. Even with ample and hiccups, if you prefer.
 
 
Check out the Newsletter of the STF:
 
Tax Limitation and decay:

The Court dismissed the extra resources brought by the National Farm against judgments of the Federal Regional Court of the 4th region to confirm the declared unconstitutionality of articles 45 and 46 of Law 8212/91, for violation of Art. 146, III, b, the CF/88, and the sole paragraph of art. 5 of Decree-Law 1569/77, in light of Paragraph 1 of art. 18 of CF/67 with the wording given by the EC 1 / 69 (Law 8212/91: "Article 45. The right to Social Security and establish his claim form is extinguished after 10 (ten) years counted ... Article 46. The right to collect Social Security claims, made in the form of the previous article, prescribes in ten (10) years. "DL 1569/77:" Article 5 Without prejudice to the impact of currency and interest update of delay and the requirement of proof of discharge to the National Finance, the Minister of Finance may decide not to enable registration as debt of the Union or the sustação of judicial recovery of debts of proven inexeqüibilidade and low value. Sole paragraph -- The application of this article suspending the prescription of claims to it. "). Set itself, the decision, effective only ex nunc in relation to collections made before 11.6.2008 and not contested by the same date, either through the courts, either by the administration. Beaten in point, the Ministry Marcus Aurelius, who votava against modulation, emphasizing the existence of jurisprudence of the Court since 1992 on the need to provide for additional law on the subject under review.
 
To emphasize, first, that the National Tax Code - CTN (Law 5.172/66), enacted as statutory law, was received as supplementary law, both by the CF/67 as CF/88, which required the use of additional law to the general rules of Tax Law, moved away from the claim that the law only fit complement the function of drawing general guidelines regarding the prescription and the decadence and tax the fixing of limitations and decay depend on the law of the entity itself tributante, now that would be matters of peculiar interest of people policies. He is the point that the Constitution did not define general rules of Tax Law, but took expression used in the CTN, and reasonable to assume that the constituent received the discipline of the CTN, including explicit reference to the prescription and decay. Thus, restricting the scope of the express constitutional standard advocated by National Farm weaken their own power and implemented regulations of the Constitution, which, clearly, wanted the discipline of prescription homogeneous and stable, the decay of the obligation and the tax credit.
 
It is emphasized that, although the doctrine had not been developed a long way towards finding the appropriate definition for "general", it would be possible to extract, in the interpretation of various constitutional provisions that established reserves for matters of law subject to additional that this species was given a legislative mandate to set standards with national scope and effectiveness of not just federal. Added that it would not be justified, at least by ordinary legislation, creating chances for suspension or interruption, or the increase or reduction of time limits, failing to accept differences in each of the states and municipalities and tax for each species, even within a political sphere, with obvious injury to constitutional seal of unequal treatment between taxpayers who are in similar situation and legal.
 
He was then the dominant jurisprudence of the Court towards the requirement of supplementary law to the discipline of both prescription and decay tributaries, including the definition of time and possibility of suspension of the corresponding creep up and said no doubt that the more contributions, including those for social security, taxation and nature have been subject to legal and tax regime. Similarly, it rejected the argument that contributions to Social Security, being subject to the provisions of art. 195 of CF, were excluded from the requirement under Art. 146, III, b, the CF ( "Article 146. The complementary law: ... III - to establish general rules of tax legislation, in particular: ... b) obligation, release, credit, prescription and decay tax; "), is seen that the standard array of different kinds of contribution would be the art. 149's CF, which states that contributions are subject to Social Security, too, not only to the rules defined in art. 195's CF. Therefore, there would be no incompatibility between such devices, which would be complementary and not exclusionary.

It was, moreover, that if the text of Paragraph 1 of art. 18 of CF/67 opportunity questioning about the function of supplementary law on general rules, the CF/88 would have eliminated any possibility of accepting the theory dichotomy, the list on different items, standards, conflicts of jurisdiction and the power limitations of tax, and to clarify that, among the general, the law would deal specifically complement of obligation, tax credits, prescription and decay. Thus, the Constitution reserves to supplement the law regulating the prescription and decadence tax, believing them to express general rules of Tax Law, there would be space for the ordinary law and act the same subject matter. Because of this, refuted the assertion is that the TNC would have foreseen the possibility of statutory law set period exceeding 5 years for approval by the tax authorities, the release made by the taxpayer (CTN, art. 150, § 4) because , due to the requirement of prior law to provide additional rules on gerias of Tax Law, which clearly could not establish a supplementary law was necessary to define the term other action in the constitution of the tax credit. Therefore, the interpretation that it is followed is that the "law" a legal device that case would be a supplementary law.
 
Similarly, it repelled the claim that the rule establishing the conditions of termination or suspension of proceedings pending the prescription would be procedural in nature and thus could not have been recognized the prescription, since no matter be subject to the supplementary law. In point, it was said that rules on prescription or that have always decay of substantive law, which - when set time decay and prescricionais, their criteria for fluency -, reach the very right material discussed, is to define situations or cases of extinction inexigibilidade of it, in Tax Law, both institutions require the revocation of rights to the Exchequer.
  To stress that the suspension of the course of time prescricional, even if expressly included in supplementary law, could not lead to imprescritibilidade the tax credit, deemed to be rejected the applicant's argument that, by being prevented from pursuing his claim, which falls among the small value of the prescription could not run during the closing. He explained that the principle of economy not this house, because if not timely or appropriate to the pursuit of the Farm Credit Service in court, by its significance before the minimum cost of recovery, it would not influence the suspension of the deadline prescricional , failing to create rule to forward absolutely contradictory claims of higher value. This would even call for suspension of the credit, because it would prevent the National Farm use other, less costly, to obtain their payment. Thus, nothing would be unconstitutional to lower the file without the file in such cases, the flaw in that paragraph, invading the field reserved for the supplementary law provides for suspension of limitation hypothesis and creates situations of imprescritibilidade, which also has no constitutional basis.
Based on the above decision, the Court, by majority, decided to deliberate on the draft Summary of the binding area. Unsuccessful, the issue, the Ministry felt that Marcus Aurelius is necessary, as a rule, submit the content of the proposed entry to the Commission of Cases before the Court to reflect more, to avoid mishaps, in view of the decision. After the Court approved the wording of the Summary 8 binding in these terms: "They are unconstitutional single paragraph of Article 5 of Decree-Law 1569/77 and Articles 45 and 46 of Law 8212/91, dealing with prescription and decay and decadence tax credit. "

This article was translated by an automatic translation system, and was therefore not reviewed by people.