More than a decade after the decision granted by the First Section of the Superior Court of Appeals (STJ) recognizing taxpayers' right to claim an offset as a matter of defense in motions to stay tax foreclosure, precedents can still be found, even within the STJ itself, not authorizing the claim, based on a mistaken interpretation of the vote drafted by Justice Luiz Fux.

Although the Justices held a unanimous position in 2009 in granting Special Appeal No. 1.008.343/SP, after reviewing the scope of paragraph 3 of article 16 of Law No. 6,830/1980, the two Public Law panels of the STJ are still giving different interpretations. This becomes evident, for example, when comparing the decision in AgInt no REsp 1.694.942/RJ, of the authorship of Justice Mauro Campbell Marques, of the Second Panel, with the decision handed down in AgRg no REsp 1.482.273/SC, of the authorship of Justice Benedito Gonçalves, of the First Panel.

This divergence of interpretation will certainly lead again to further discussion of the matter within the First Section in order to provide the correct interpretation of the provision in question.

Although both positions defend the possibility of discussing offsets performed before the tax foreclosure in the context of a motion to stay, a part of the enforcers of the law believes that it is only possible to debate in court offsets already approved by the tax authorities, i.e., where the taxpayer's credit has already been recognized by the tax authorities themselves. The other part of the enforcers of the law duty only restrict the claim for an offset when it is done in the motion itself, which makes it possible to discuss the validity of administrative acts that do not approve an offset.

Those who argue that taxpayers could only raise a validated offset in the filing of a motion also argue that the review of a non-validated offset would be a form of judicial offsetting, which does not seem to us the best interpretation on the subject. This is because the limitation on the discussion of a validated offset is incompatible with the very existence of the tax debt being enforced, in addition to being far from the current reality surrounding the institute of tax offsetting at the federal level.

When taxpayers find that they have unduly paid a certain tax, they must fill out an electronic form using the PER/DCOMP program, created by the Brazilian Federal Revenue Service (RFB), and report that they owns a tax credit that they will use to offset (extinguish by offsetting) a certain tax debt that has become due or is yet to mature.

From the moment the electronic transmission of PER/DCOMP is carried out, the RFB has five years to approve or deny the offset performed by the taxpayer. In parallel, taxpayers register the debit in the RFB's system and report that it has been "settled by offsetting", therein listing the corresponding PER/DCOMP number in their declaration.

If the offsetting of the taxes is validated, the debit in the tax system is automatically extinguished. That is: if there is no debit, there will be no tax foreclosure. Consequently, if there is no tax foreclosure, there will be no motion to stay, much less any discussion as to the correct interpretation of paragraph 3 of article 16 of Law No. 6,830/1980.

Therefore, the advocates of the position that it is only possible to argue a validated offset as a matter of defense in a motion to stay are far from the current reality involving tax offsetting. It is not denied that there may be cases where the tax authorities mistakenly demand a debt already extinguished by offsetting, but that is not the rule. This is an increasingly rare exception, as the RFB’s procedures are all automated.

Thus, limiting the taxpayer's defense at the stage of a motion to stay enforcement on the basis of an extremely restrictive interpretation undermines the logic of the legal system.

It is worth remembering that the beginning of the vote given by Justice Luiz Fux demonstrates that the allegation that only a validated offset could be discussed is invalid. He clearly stated in his vote that “tax offsets acquire the nature of a subjective right of the taxpayer (also enforceable in the context of a motion to stay tax enforcement), in the event of simultaneous presence of three essential elements: (i) the existence of a tax credit, as a product of the administrative act of the entry or the standard act of the taxpayer that creates the tax credit; (ii) the existence of a tax debt, as a result of: (a) an administrative act invalidating the tax entry, (b) an administrative decision, (c) a judicial decision, or (d) an act of the taxpayer itself, when authorized by law, it being incumbent on the Tax Administration to inspect and subsequently approve the tax debt calculated by the taxpayer; and (iii) the existence of a specific law, promulgated by the competent entity, authorizing the offset, by force of article 170, of the CTN, according to which 'the law may, under the conditions and under the guarantees it stipulates, or the stipulation of which in each case it assigns to the administrative authority, authorize the offsetting of tax credits against liquidated and certain debts, past due or falling due, of the taxable person against the Public Treasury'.”

It is possible to note, from this part of Justice Luiz Fux’s vote, that the "tax authority’s debit" (or credit of the taxpayer) may arise in four different situations, were, in one of them (ii.d), the credit arises from an act from the taxpayer itself.

The fact that the tax administration is responsible for the inspection and subsequent approval of a given tax offset does not strike down the act performed by the taxpayer, since the liquidity and certainty of the tax credit are not related to its recognition by the tax authority, as professors Fredie Didier Jr. and Júlia Lipiani teach:

"In this perspective (of inapplicability of civil rules to tax offsetting), the only general conditions for the exercise of the right to offset in the tax field are that it occur between liquidated credits and fungible things (CC (LGL\2002\400), article 369) and that there be, between the taxable entity and the taxpayer for the tax obligation, reciprocal credits and debits.

Tax withheld in error is liquidated and certain when its current existence is found, that is, when it is not a credit that depends on a future event. The liquidity and certainty of the tax credit are not related to recognition by the tax or judicial authority or to the existence of evidence to that effect" (DIDIER JR., Fredie; LIPIANI, Julia. Claim of tax offset as a defense in a tax foreclosure. Revista de Processo [“Review of Procedure”], 2019. v. 295. p. 237-277)

Thus, if a given taxpayer finds that he has paid more in tax based on a mistaken premise, which, incidentally, may be related to an (in)correct interpretation of the provisions of law in force, it suffices for him to perform settlement of his credit and so indicate in PER/DCOMP to offset against a tax debt due by the same taxpayer to the RFB.

In a large part of the orders with decisions not granting the offsets conducted by the taxpayer, the RFB merely interprets the current legal rules so as to conclude that the taxpayer would not be entitled to use the credit, i.e., the agency does not perform any assessment in order to say whether or not the amount calculated is correct according to the divergent interpretation.

An example is a case debating the theory of non-inclusion of the ICMS in the PIS and Cofins calculation basis. For years, various offsets were not granted by the RFB based on the interpretation that this state tax should be included the calculation basis of those contributions. The non-granting of these offsets caused the PIS and Cofins debts to reappear and led to the filing of countless tax foreclosures.

In this scenario, considering that the STF recognized the unconstitutionality of the inclusion of the ICMS in the PIS and Cofins tax basis, is it compatible with the Rule of Law to prevent the taxpayer from defending the validity of the offset that was not validated at the stage of a motion to stay enforcement or the illegality of the administrative act that did not validate the offsetting thereof? It seems obvious to us that it is not.

There are also cases where the RFB does not grant the offset on the grounds that the taxpayer does not have a credit, solely on the basis of cross-checking of information in its computerized system. Thus, the credit right of a given taxpayer may be affected, for example, by the fact that another taxpayer forgot to report the withholding of income tax in a certain assessment.

If the tax enforcement is brought by the Public Revenue Service, would the taxpayer be prevented from proving, at the stage of a motion to stay enforcement, that he owns a tax credit against the RFB? The answer again is no.

The administrative act of the RFB in denying the offset can and shall be challenged at the motion to stay enforcement stage, irrespective of the grounds raised by the tax authorities to not recognize the right of credit. If it is proven that the assumption adopted by the RFB was wrong, the tax debt resulting from the denial of a given tax offset should be promptly extinguished, since it originates from an erroneous administrative act.

The lessons of Fredie Didier Jr. and Júlia Lipiani in the study cited above are along the same lines:

“An administrative offset performed by a taxpayer may be refused by the tax authority, which will have to issue a specific administrative act (infraction notice in the case of article 66 of Law 8,383/1991 (LGL\1991\39) and the decision not to validate in the case of article 74 of Law 9430/1996 (LGL 1996/1998), duly supported, by which it must set out the reasons for the inadmissibility of the offset.

This administrative act, of course, may be submitted to judicial review, since, as it is not a matter subject to the discretion of the government, the offset cannot be denied for reasons of expediency or convenience. On the contrary, it is a non-discretionary act, the motives for which are determinant and may be reviewed by the judicial authority if misapplication of the Law to the specific case is demonstrated.

The debt that arises due to a refusal by the tax authorities to validate the offset performed by the taxpayer can only have its validity questioned through evaluation of the procedure adopted. To believe that an administrative decision not validating the offset cannot be subject to review in a motion to stay enforcement is to ignore that the act of authorization is an administrative act, fully non-discretionary, which must be subject to judicial control, under penalty of violation of article 5, XXV, of the Federal Constitution. There is nothing to be said of administrative res judicata to the taxpayer's disadvantage.

In this case, the taxpayer will not be seeking offset by means of a motion to stay enforcement. On the other hand, the offset would have already been carried out previously, thus restricting the discussion, in the motion, to the validity or lack thereof of this administrative offset previously carried out.

Thus, there is no obstacle for the taxpayer, when charged for a debt resulting from a denial of an offset, to raise in court the non-existence of the debt, arguing that the administrative act that refused the offset for some reason is wrong. This objection may be made both in a lawsuit at its initiative and in response to a tax enforcement, through a motion to stay" (DIDIER JR., Fredie; LIPIANI, Julia. Claim of tax offset as a defense in a tax enforcement. Revista de Processo [“Review of Procedure”], 2019. v. 295. p. 237-277)

Even so, the professors are rightly critical of the STJ's interpretation that an offset could only be debated at the stage of a motion to stay:

"It is worth noting here that, from an interpretation of that appellate opinion, it is not possible to conclude that the STJ allowed only the claim of an offset preceded by a lawsuit authorizing the repetition of the tax withheld in error, or of a credit already recognized by the Public Revenue Service. When it mentions that an offset may be used as a basis for defending a motion to stay tax enforcement "especially when, at the time of the offset, the requirements of the existence of a compensable tax credit, the establishment of tax withheld in error, and the existence of a specific law authorizing the extinction of said tax credit have been met", the adjudicatory body is reinforcing its theory in relation to the specific case, in which, in addition to having been offset by the taxpayer prior to the claim, all these other situations have been established.


To prohibit the administrative decision not validating the offset, in any case, from being subject to a judicial decision in a motion to stay enforcement would be to ignore that the act of authorization is a nondiscretionary administrative act, which must be subject to judicial control. The law could not be interpreted in this way, under penalty of violation of the principles of a full defense and mandatory jurisdiction (article 5, subsections LV and XXXV).

In cases where taxpayers allege, in a motion for stay of enforcement, a prior previous administrative tax offset not validated, they seek a decision, in this motion to stay enforcement, regarding the validity of this prior administrative offset that, once recognized, will extinguish the tax debt" (DIDIER JR., Fredie; LIPIANI, Julia. Claim of tax offset as a defense in a tax enforcement. Revista de Processo [“Review of Procedure”], 2019. v. 295. p. 237-277)

Therefore, there can be no other interpretation of the appellate decision in REsp No. 1.008.343/SP and article 16, paragraph 3, of Law No. 6,830/1980, since the debate on the validity of the administrative act not recognizing the offset does not mean that the tax credit does not exist.

Faced with this scenario of uncertainty, it is more than welcome that the First Section again discuss the matter, expressly validating once again that the taxpayer may claim against the tax enforcer an offset previously performed during the motion to stay phase, regardless of whether or not it was validated by the tax authorities, in order to give value to the exercise of an adversarial proceeding and a broad defense.