Last year, federal government secured victories in most major cases heard in higher courts
01/13/2025
The federal government won the majority of its tax cases in Brazil’s higher courts in 2024, prevailing in 18 out of 23 significant disputes and avoiding potential losses of billions of reais. In just three cases, the combined impact was R$86.1 billion. However, the Supreme Court is still set to hear 27 additional cases, leaving the National Treasury exposed to a fiscal risk of at least R$698.7 billion.
Among the pending cases, two involve issues stemming from the 2017 STF decision on excluding the ICMS (Tax on the Circulation of Goods and Services) from the calculation base of PIS (Social Integration Program) and COFINS (Contribution for the Financing of Social Security) contributions, often referred to as the “case of the century.” These include the exclusion of ISS from the PIS/COFINS calculation base (Topic 118), where the Supreme Court plenary has already begun deliberations. Based on virtual session votes, a majority appears to favor taxpayers. Another closely watched case concerns the exclusion of PIS and COFINS from their own calculation bases (Topic 1067). Together, these cases carry a fiscal impact of R$101.1 billion.
The most financially significant case under review could cost the government R$325 billion. This dispute revolves around whether a supplementary law is required to levy PIS and COFINS on imports, which is currently done through an ordinary law, Law No. 10,865/2004, passed with a simple majority in Congress (Topic 79).
Another critical case challenges limits on tax deductions for education expenses under the income tax framework (ADI 4927), which could result in a R$115 billion loss for the federal government. Additionally, a case involving mining giant Vale addresses the use of international treaties to avoid double taxation of its foreign subsidiaries, with an estimated impact of R$22 billion.
The Vale case has seen divided opinions among justices, and the trial was paused after a request for review. The matter is scheduled to resume in the STF’s virtual plenary on February 7 (RE 870214). It remains a top priority for the Office of the Attorney General for the National Treasury (PGFN). Anelize Almeida, head of the PGFN, has personally met with all STF justices to discuss this case.
Another key issue involves the applicability of PIS and Cofins on financial revenues from technical reserves of insurance companies (Topic 1309). In June, Justice Dias Toffoli issued a preliminary injunction suspending the charges, a decision upheld in September by the Supreme Court’s First Panel. The court also recognized the general repercussion of the issue, with a potential fiscal impact of R$5.28 billion over five years. “This case currently has an unfavorable decision for the Treasury,” said Ms. Almeida, who plans to restructure her STF team this year.
Euclides Sigoli Junior has been appointed as the new general coordinator of the legal team, bringing experience from Brazil’s First Region. According to Ms. Almeida, Mr. Sigoli’s primary goals include integrating the STF team with other legal divisions and improving data transparency regarding cases and success probabilities. “I want to know how each Supreme Court justice votes based on a jurimetric analysis of prior decisions. For instance, in a specific case, what are the chances of us [PGFN] winning?” Ms. Almeida explained.
Most of the pending cases do not have fiscal impact estimates outlined in the 2025 Budget Guidelines Law (LDO). Data on the disputes were compiled by Machado Associados law firm at Valor’s request.
Key 2024 decisions
In 2024, taxpayers scored a R$6 billion victory in the STF, where justices ruled against taxing retirement and pension income sent to residents abroad (Topic 1174). Taxpayers also celebrated the reduction of penalties in administrative tax cases. The cap for qualified fines was lowered from 150% to 100%, with the higher cap now applicable only for repeat offenses.
For the government, the most significant win of 2024 involved the Special Regime of Reintegration of Tax Values for Exporting Companies (Reintegra), with a fiscal risk of R$49.9 billion. In October, the STF upheld the executive branch’s authority to freely adjust tax rebate rates under the program, which reimburses exporters for a portion of the tax burden unclaimed throughout the production chain (ADI 6040).
Another notable decision upheld the collection of PIS and COFINS on revenue from leasing movable and immovable property. Taxpayers had argued that federal taxes should not apply, as such leases do not constitute the sale of goods or the provision of services. The STF rejected this argument, preventing losses of R$36.2 billion for the federal government (Topics 630 and 684).
Most recently, the PGFN won a narrow 6-5 decision supporting the collection of social contributions on income earned from financial investments by closed supplementary pension funds (EFPCs) (Topic 1280).
Tax experts believe that some of the most significant cases in 2024 were decided by the Superior Court of Justice (STJ). These rulings were impactful due to their binding nature as repetitive appeals, establishing precedents for the judiciary, and for breaking with prior jurisprudence. One of the most critical decisions was the removal of limits on contributions paid by companies to the S System—entities like Sesc, Senai, Sesi, and Senac (Topic 1079).
The STJ’s First Section ruled that the calculation base for “third-party contributions” or “parafiscal contributions” should not be capped at 20 times the minimum wage (currently R$28,200). As a result, the tax burden, which can reach 5.8%, will now apply to companies’ entire payroll. Had the government lost the case, the estimated fiscal impact would have been R$11.7 billion. However, the case is still pending review by the Supreme Court.
For lawyer Renato Silveira of Machado Associados, the ruling has created uncertainty as the STJ excluded other contributions, such as those for INCRA (National Institute for Colonization and Agrarian Reform), from its scope. “We’ve seen varying decisions. Some courts apply the ruling consistently, while others deny similar modulation for other contributions. This inconsistency has caused significant legal uncertainty,” he said, adding that suspending the cases to resolve the issue would be a better solution.
For taxpayers, a notable victory came with the decision against taxing stock option plans (REsp 2069644 and REsp 2074564), said Ariane Guimarães, a lawyer at Mattos Filho. Another significant case involved the exclusion of ICMS-ST (substituted ICMS) from the PIS and COFINS calculation base, with an opinion and modulation issued in 2024 (REsp 1896678 and REsp 1958265). “It was determined that there is no need to demonstrate the economic impact on the substituted party, as it is already implied,” she said. “This ruling removed an obstacle that could have disadvantaged taxpayers under Article 166.”
She also highlighted the STF’s ruling on appeals regarding the automatic reversal of final tax decisions (“res judicata”) in cases where constitutional interpretations had changed (Topics 881 and 885). The STF accepted one of the companies’ arguments to remove penalties. Additionally, she pointed to a landmark decision on social security taxation of the one-third vacation bonus (Topic 985). “The vacation bonus case was one of the most emblematic, as the STF modulated its effects in favor of taxpayers due to the change in jurisprudence, considering that the STJ had ruled differently back in 2010,” she said.
Upcoming cases
Looking ahead to 2025, one of the most anticipated cases in the STJ concerns the taxation of presumed ICMS credits in the corporate income tax (IRPJ) and social contribution (CSLL) calculation bases. The case is currently being considered for classification as a repetitive appeal. A similar dispute is pending before the STF regarding PIS and COFINS (Topic 843).
Bruno Teixeira, a lawyer at TozziniFreire, said there is precedent in the Superior Court of Justice (STJ) regarding the inclusion of presumed ICMS credits in the IRPJ and CSLL calculation bases. While the precedent favors taxpayers, it is not classified as a repetitive appeal, and rulings on other tax benefits have not been as favorable. “It was thought that the issue was settled in the STJ, but significant controversy remains, especially after the amendment of Law No. 14,789 at the end of the year before last, which repealed Article 30,” Mr. Teixeira said.
Another important topic involves the authorization granted by the STJ and Supreme Federal Court (STF) for the federal government to file rescissory actions against taxpayer-friendly rulings related to the “case of the century.” These actions target decisions made between the original ruling on the merits in 2017 and the modulation of its effects in 2021. “Although the STJ and STF ruled positively for the government, the provision authorizing such actions is also under review at the STF,” Mr. Teixeira said, referencing Article 535 of the Civil Procedure Code, which is being challenged in the case (AR 2876). “If it is declared unconstitutional, the authorization granted by the courts will be nullified.”
The Office of the Attorney General for the National Treasury (PGFN) attributes the reduction in fiscal risk estimates in the Budget Guidelines Law (LDO) to the “strength of the legal arguments it defends in court.” In a statement, the agency said it aims to resolve disputes through consensual agreements, leveraging tax settlement programs such as the Comprehensive Transaction Program (PTI), which allows for agreements on 17 key issues. “We believe that negotiation and dialogue are essential tools for resolving conflicts and fostering a fairer and more transparent tax environment,” the PGFN said.
*By Marcela Villar e Flávia Maia — São Paulo, Brasília
Source: Valor International