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Minister Luiz Fux , from the STF, granted the appeal and maintained the granting of R$4.4 million in tax credits obtained by a company due to the "thesis of the century", which excluded ICMS from the PIS calculation base.

 

In the monocratic decision, the minister noted that the decision that allowed the credits to the company was in harmony with the Court's understanding at the time - as it was prior to the decision to modulate the effects.

 

 

Minister Fux decides in favor of the company in the "thesis of the century" case. (Image: Carlos Moura/SCO/STF)

The case

 

In 2017, the Supreme Court decided to exclude ICMS from the tax calculation base. In 2021, when ruling on embargoes, the Court modulated the effects of the decision, so that they would be valid from March 2017, with the exception of legal actions and administrative procedures filed before that date.

 

In the four years between one trial and another, taxpayers obtained court decisions in favor of the right to exclude ICMS from the calculation base, having received tax credits.

 

This was the case of the company party to the appeal judged. After obtaining the credit, the Union filed a rescission action to dismiss the res judicata because it would be necessary to adapt the STF's decision in the trial in which it decided to modulate the effects. In TRF-4, the action was judged valid.

 

However, when analyzing the appeal to the STF, Minister Fux observed that, in this case, the rescinding ruling assured the taxpayer the right to exclude ICMS from the calculation basis of the PIS contribution without temporal reservations in an action filed after 3/15 /17, which would allow, in principle, its partial termination for the application of the aforementioned modulation of effects. However, the ruling became final on 2/25/21, before the judgment that established the modulation of effects. "In other words, the ruling rescinding, at the time of its formalization, was in harmony with the understanding of the Plenary of this Court regarding the aforementioned topic of general repercussion, which makes its termination unfeasible."

 

The minister also cited Theme 136 of the Court, according to which there is no rescission action when the ruling is in harmony with the understanding reached by the Court's plenary session at the time of formalizing the ruling.  

 

Process : RE 1,468,946