The Federal Supreme Court, in September 2021, concluded the judgment of RE No. 1.063.187 (Theme No. 962) and, unanimously, ruled for the unconstitutionality of the levy of IRPJ and CSLL on the Selic Rate received by the taxpayer when repaying an undue debt, the following thesis being established: “It is unconstitutional the incidence of IRPJ and CSLL on amounts related to the Selic rate received due to the repetition of tax undue payment”.
The Selic Rate, as is well known, is composed of interest on arrears and monetary correction, and is the index adopted by the Federal Tax Authorities in the reimbursement of federal undue payment¹.
In this sense, the Supreme Court, following the understanding of Justice Dias Toffoli, Rapporteur of the leading casethat the “(…) interest on arrears is outside the scope of income tax and CSLL, since it is intended, primarily, to recompose effective losses, decreases, not implying an increase in the creditor’s equity (…)”.
The Court, however, failed to analyze the question of modulation of the effects of the decision. However, it is possible that the National Treasury may file a Motion for Clarification to discuss the modulation.
At this point, for those taxpayers who have not yet filed a lawsuit, we suggest they do so soon.
We are at your disposal should you need any clarification on these or other issues.
¹ The STJ, through the vote of Min. Luiz Fux, reporting justice for REsp 411.164/PR at the time of the judgment, held that “(…) the SELIC rate represents the actual interest rate and the inflation rate for the period considered and cannot be applied, cumulatively, with other readjustment indexes (…)”.
DDSA Tax Team