Post by firoj8240 on Jan 11, 2024 3:20:07 GMT
"The split is from the beginning" , Pontes de Miranda warned us in his book The Fundamental Problem of Knowledge [1] , which demonstrates the importance of analytical understanding of certain institutes for the implementation of values that the law seeks to achieve, such as This is the case of effectiveness and instrumentality in the tax process, especially in the field of the constitutional precept of res judicata. The thematic object of this article falls within this context, namely, the explanation of the effects that certain tax judicial decisions produce on situations involving third parties who do not participate in the procedural legal relationship (procedural third parties). To facilitate understanding of the subject, imagine an action promoted by taxpayer A in the face of state entity B whose decision ultimately ends up affecting the tax responsible C and/or state entity D, a phenomenon that, in the general theory of the process, is linked to the macro-theme of jurisdiction and the question of the limits (objective and subjective) of res judicata.
Take for example the case recently judged by the 1st Panel of the STJ in Appeal in Special Appeal 1.423.187/SP, reported by Minister Gurgel de Faria, judged on 10/5/2022, which discussed in origin the following guidance signed by the TJ-SP: "(…) Granting of an injunction in a case filed in the Goiás court that freed the companies that dealt with the final recipient from the collection of ICMS on interstate operations involving petroleum derivatives. The effects of such an injunction are not possible to reach the São Paulo Tax Authority, as it does not joined the dispute (art. 472 of in order to keep the notice Betting Number Data drawn up intact. Responsibility of the company, now under appeal, to bear the withholding of the tax due Unfoundedness of the embargoes maintained. mphasis added). In this case, an injunction granted in an action filed by the replaced company, in the state of Goiás, removed the retention of ICMS-ST by the substitute company, a distributor located in the state of São Paulo.
Subsequently, the State of São Paulo came to issue and demand ICMS-ST against the person responsible/substitute, alleging, in its defense to the Tax Execution Embargos, that it was not part of the dispute and, therefore, would not be linked to the decision in the terms of article 472 [2] of the CPC/1973 (current article 506 [3] of the CPC/2015). There is a recurring dilemma in tax litigation relating to taxes which, by their nature, involve the transfer of the economic burden to third parties. There are fertile examples, such as: actions discussing the IPI on unconditional discounts filed by distributors, exempting industries from the obligation to collect; actions dealing with ISS filed by service providers, questioning retention rules by borrowers from different municipalities; IRRF actions proposed by the withheld sources, removing the withholding duty from the paying source; Recently, there has been a discussion in Topic 1,125 of the STJ, relating to the exclusion of ICMS-ST from the PIS/Cofins base by the replaced one, among others.
Take for example the case recently judged by the 1st Panel of the STJ in Appeal in Special Appeal 1.423.187/SP, reported by Minister Gurgel de Faria, judged on 10/5/2022, which discussed in origin the following guidance signed by the TJ-SP: "(…) Granting of an injunction in a case filed in the Goiás court that freed the companies that dealt with the final recipient from the collection of ICMS on interstate operations involving petroleum derivatives. The effects of such an injunction are not possible to reach the São Paulo Tax Authority, as it does not joined the dispute (art. 472 of in order to keep the notice Betting Number Data drawn up intact. Responsibility of the company, now under appeal, to bear the withholding of the tax due Unfoundedness of the embargoes maintained. mphasis added). In this case, an injunction granted in an action filed by the replaced company, in the state of Goiás, removed the retention of ICMS-ST by the substitute company, a distributor located in the state of São Paulo.
Subsequently, the State of São Paulo came to issue and demand ICMS-ST against the person responsible/substitute, alleging, in its defense to the Tax Execution Embargos, that it was not part of the dispute and, therefore, would not be linked to the decision in the terms of article 472 [2] of the CPC/1973 (current article 506 [3] of the CPC/2015). There is a recurring dilemma in tax litigation relating to taxes which, by their nature, involve the transfer of the economic burden to third parties. There are fertile examples, such as: actions discussing the IPI on unconditional discounts filed by distributors, exempting industries from the obligation to collect; actions dealing with ISS filed by service providers, questioning retention rules by borrowers from different municipalities; IRRF actions proposed by the withheld sources, removing the withholding duty from the paying source; Recently, there has been a discussion in Topic 1,125 of the STJ, relating to the exclusion of ICMS-ST from the PIS/Cofins base by the replaced one, among others.