On February 12, the Superior Court of Justice (STJ) initiated a ruling that may have important repercussions on the use of writs of mandamus to obtain a declaration of rights to offset tax overpayments. The discussion relates to a motion to decide diverging rulings in Special Appeal No. 1.770.495-RS (EREsp 1.770.495-RS), filed after a judgment handed down by the 2nd Panel of the court.

On that occasion, having upheld the appellate decision handed down by the Court of Appeals of the State of Rio Grande do Sul, the understanding prevailed that, although a writ of mandamus may be used as an instrument to declare the right to offset tax overpayments not extinguished by the statute of limitations, this procedure could not affect past property effects. Accordingly, the amounts collected should be claimed via administrative means or in a separate lawsuit.

The decision's line of argumentation puts into debate the coexistence of the guidelines contained in Precedent 271 of the Federal Supreme Court (STF) and Precedent 213 of the STJ. The first, approved by the STF in December of 1963, establishes that a writ of mandamus does not produce past property effects, which must be subject to a request before the Government or a separate lawsuit. The second, approved by the STJ in September of 1998, establishes that a writ of mandamus is the appropriate means for declaring the right to an offset.

It is therefore appropriate to investigate the judgments[1] that resulted in the approval by the STF of Precedent 271 in order to identify the scope of this precedent and to state that Law No. 12,016/09, which currently governs writs of mandamus, included a specific provision for the issue.

An analysis of the cases that preceded the issuance of the precedent shows that they referred to situations in which employees claimed recognition of a certain right before the Government, for example, appointment to an office after approval in a civil-service examination, and, as a result, payment of a certain amount.

The judicial relief in the writs of mandamus with the scope reported was eminently of the nature of establishing rights. Therefore, the collection of any amounts arising from delay in the implementation of this legal relationship, as a kind of compensation, would not be compatible with this procedural instrument.

Law No. 12,016/09, as explained above, provided in its article 14, paragraph 4,[2] that wages and monetary advantages recognized in favor of a public servant by a judgment issued in a writ of mandamus do not cover the period prior to the application for mandamus. This confirms the understanding that decisions recognizing a certain right in favor of a public servant does not allow for a claim, through the narrow pathway of a writ of mandamus, for economic redress concerning the past. The time limit is the assignment to a judge of the judicial measure.

In turn, in the STJ, Precedent 213 arose as a result of consolidated case law in favor of the possibility of using the writ of mandamus as an instrument to declare the right to offset a tax overpayment. In other words, since the tax obligation derives from the law, in view of the fact that the principle of legality is the guiding principle of the Brazilian tax system, a defect of unconstitutionality or illegality in the normative vehicle that introduces a new requirement is the precondition for declaring the right to return amounts paid by way of an offset. It is precisely this issue of law alone that must be assessed in the writ of mandamus in order to declare the right to an offset.

One consequence of this limitation on the scope of writs of mandamus seeking a declaration of the right to an offset is the prohibition on reviewing issues concerning the definition of the amount to be returned, which would even exceed the restrictions on the use of the constitutional remedy. All issues relating to calculation of the amounts to be offset, proof of undue payments, and procedure, among others, shall follow the provisions of specific legislation and shall be effective vis-à-vis the Government.

An additional element in admission of the writ of mandamus as a means of recognizing the right to an offset is the fact that the activities of the administrative authorities acting in tax matters are binding. This means that, even if the STF or the STJ has decided that a certain provision of law is unconstitutional or illegal, the authorities will continue to apply the unconstitutional or illegal command until the provision is expressly revoked or a decision in concentrated control of constitutionality or binding precedent is issued by the STF. The effective result of this position is that if the taxpayer chooses to initiate the procedure for an offset before the Government, regardless of a court decision, its request will be rejected and a penalty imposed.

In this scenario, a writ of mandamus having as its scope the declaration of a right to an offset is the appropriate mechanism for a taxpayer to obtain judicial relief authorizing it to offset amounts charged on the grounds of unconstitutional or illegal provision.

It follows, therefore, that mere declaration that the taxpayer is entitled to an offset does not allow the conclusion to be drawn that past property effects have been assigned. On the contrary, the decision is an order that only declares the right to the offset and its effectiveness vis-à-vis the Government is conditioned on the observance of a specific procedure (at the federal level, Law No. 9,430/96 and RFB Normative Instruction No. 1,717/17).

Returning to EREsp 1.770.495-RS, it may be seen that the assessment of the matter by the First Section of the STJ is the result of some confusion between the guidelines of Precedent 271 of the STF and Precedent 213 of the STJ. The conclusion of the judgment may lead to a relevant change in the way writs of mandamus are used to declare a right to an offset.

Thus far, two opinions have been issued, by Justice Gurgel de Faria and Justice Napoleão Nunes Maia Filho, in order to reaffirm the case law of the STJ and the guidance of Precedent 213, admitting writs of mandamus to declare a right to an offset. And the important thing: always with the proviso that the corresponding rules and confirmation of amounts must be respected before the Government, which is charged with supervising the entire procedure adopted. There is not yet a date for resumption of the judgment, which will occur with the presentation of the opinion of Justice Herman Benjamin.

With the completion of this judgment, the STJ is expected to correct the confusion created in the specific case (EREsp 1.770.495-RS), which led to the matter being reviewed by the First Section. This may avoid the regression represented by the acceptance of varying guidance, which dates all the way back to 1963, and the contempt for the case law of the Court settled more than 20 years ago.

[1] Ordinary Appeal in Writ of Mandamus 6,747 and Extraordinary Appeal 48,657.

[2] Article 14. An appeal may be brought against the judgment denying or granting mandamus. (...)

Paragraph 4. The payment of wages and monetary advantages assured in a judgment granting a writ of mandamus to a public servant of the direct administration or federal, state, and municipal authorities shall only be made in relation to the benefits that fall due as of the date of filing of the complaint.