A coisa julgada em matéria tributáriaestudo acerca de sua eficácia no tempo e seu desdobramento nas ações declaratórias

Resumo

This paper aims to analyze the extent to which the effects of res judicata in tax matters develop over time. As it shall be seen in the course of this study, depending on which type of legal relationship it relates to, the res judicata may have its temporal effectiveness revoked, resulting in consequences that may impact both future and past legal facts. Such impact on the temporal effectiveness of res judicata, in the tax-procedural environment, has gained notoriety in recent years, bringing up frequent debate among doctrine and jurisprudence. Its prominence stands out in relation to anti-taxation actions, as in the case of declaratory nature suits, which motivated the enactment of Regulatory Opinion number 492/2011 by the Attorney General’s Office of the National Treasury (“PGFN”, in Portuguese). The contemporaneity and relevance are also evidenced by the future appreciation of the topic by the Brazilian Federal Supreme Court (“STF”, in Portuguese), which shall judge the Extraordinary Appeals n. 949,297/CE and 955,227 BA, listed by STF as themes 881 and 885 of general repercussion, respectively. For a thorough understanding of the theme, in this paper, firstly, it has been decided to approach the elementary concepts related to res judicata, i.e., its limitations and categories of legal relations, focusing on res judicata arising from legal relations of continuous instalments. Subsequently, the leading role of the Judiciary Branch strengthened by the precedent system of the current Brazilian procedural model has been addressed, as well as the ability to interrupt the effects of res judicata, mainly the decisions issued by the Federal Supreme Court in the context of diffuse constitutionality control, whence the precedent itself emerges from. Going through these considerations and analyzing six possible temporal solutions related to the moment when the effects of res judicata are interrupted, this paper sought to elect the most appropriate moment, binding it to the current democratic and participatory model of relationship between the tax authorities and taxpayers. Having overcome the treatment to be given to res judicata and its prospective effects, this paper shall aim the effects of the res judicata interruption regarding past facts, seeking a current interpretation of Precedent number 343 of the Brazilian Federal Supreme Court and the correct identification of the field of termination of final and unappealable court decisions, considering the recent improvements of the rescissory actions in Brazilian procedural law. Lastly, considering the criticisms that the interruption of the effects of res judicata represents an offense to legal certainty and legal stability, the present paper evaluated whether the admissibility of the interruptive effects denotes significant features of tax predictability (tax certainty), a trend that has been debated in the international scenario, in particular by the Organization for Economic Cooperation and Development (OECD).

Ficha do documento

Tipo

Dissertação

Ano

2020

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/29806

Palavras-chave

Tax lawCivil procedural lawRes judicataLimitationsPrecedents systemLegal certaintyTax predictabilityTax certaintyRescissory actionCoisa julgadaDireito tributárioDireito processual civilLimitaçõesSistema de precedentesSegurança jurídicaPrevisibilidade tributáriaAção rescisóriaDireitoDireito tributário - BrasilPrecedentes judiciais