This February 2019, the 1st Section of the Superior Court of Justice, resuming the judgment that had been suspended in December 2018, at the request of Justice Og Fernandes, decided, in a repetitive judgment, the issue of the need for proof of undue tax collection for offsetting credits via a writ of mandamus.
At the time, the Rapporteur, Justice Napoleão Nunes, cast his vote understanding that the proof of the position of tax creditor is sufficient, considering that the proof of tax collection for offsetting purposes will be required at a later stage.
After the trial was resumed, Justice Og Fernandes cast his vote following Justice Napoleão Nunes, who, in turn, was followed by the panel.
It is important to stress that the judgment delimited the content of the thesis established in 2009, at the time of judgment of Special Appeal No. 1.111.164/PB (Theme 118), also on a repetitive basis, which defined that “it is necessary to effectively prove the collection made in excess or unduly for purposes of stating the right to tax offsetting in the seat of a writ of mandamus.
Thus, two theses were fixed:
- In the case of a writ of mandamus seeking the declaration of the right to tax offsetting, due to the recognition of the illegality or unconstitutionality of the requirement of the exaction, regardless of the ascertainment of the respective amounts, it is enough for the taxpayer to prove that he occupies the position of tax creditor, since the proof of undue collection will be required later in the administrative sphere when the offsetting procedure is subjected to verification by the Tax Authorities; and
- In the case of a writ of mandamus seeking a specific judgment on the installments to be offset, alleging the liquidity and certainty of the credits, or even, in the event that the effects of the judgment presuppose the effective homologation of the offset to be carried out, the taxpayer must prove, through pre-constituted evidence, the amounts unduly paid.
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