On the 7th, the Office of the Attorney General of the National Treasury (PGFN) filed a Statement of Clarification against the decision handed down by the Federal Supreme Court (STF) in Extraordinary Appeal 1,063,187/SC (Theme 962). The judgment of the RE unanimously dismissed the incidence of Corporate Income Tax (IRPJ) and Social Contribution on Net Income (CSLL) on the adjustment of amounts received by the taxpayer in the form of the Selic rate in return for undue payment.

In the requests made, the PGFN requests that the effects of the decision be modulated as of February 24, 2021 (the date of the judgment), including in administrative proceedings. In addition, the National Treasury requests that the Supreme Court not reserve the right to legal proceedings, and if it does, that it be until September 1, 2021, the date on which the case is included in the judgment. Furthermore, if this date is not accepted, the Public Treasury proposes September 17, 2021, when the virtual plenary trial began.

According to the grounds presented, the PGFN highlights that the STF ruling changed the prevailing case law understanding on the subject until then – it is worth mentioning that the position of the Superior Court of Justice (STJ) was favorable to the tax authorities –, which justifies the modulation of the effects. Another point highlighted by the Public Treasury was the fact that, after the vote of the Rapporteur Minister in favor of the taxpayers, there was a significant increase in the number of lawsuits filed.

In addition to the modulation, the PGFN also requests clarification from the Supreme Court on the extension of the decision to the Personal Income Tax (IRPF), as stated in the Ruling. This is because, in the opinion of the National Treasury, the STF would have incurred in contradiction, since the subject affected by the general repercussion concerns only the IRPJ. The Tax Authorities also request that the Supreme Court clarify the scope of the theses to other contexts, such as requests for refund, compensation, withdrawal of judicial deposits and interest on arrears in general.

Although the request for modulation by the PGFN was expected, the Treasury's intention that the modulation does not cover facts that occurred prior to the conclusion of the judgment of Theme 962 is noteworthy, which demonstrates a clear attempt to undermine the Supreme Court's decision in favor of taxpayers.