Brazilian ordinances attempt to subvert judicial decisions because of subsequent case law developments

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Brazilian ordinances attempt to subvert judicial decisions because of subsequent case law developments

The National Treasury Attorney-General's Office in Brazil is claiming that Supreme Court decisions can kill the effect of decisions in favour of taxpayers, allowing the authorities to charge taxes that were previously ruled out by the courts. However, as Joao Marcos Colussi of Mattos Filho explains, other courts do not agree

The National Treasury Attorney-General's Office has issued several ordinances over the past few years (Ordinances PGFN/CRJ No. 492/2011, 975/2011 and 396/2013), in which it has stated its position that changes in past jurisprudence caused by decisions handed down by the Federal Supreme Court (STF), in the context of "diffuse constitutional control" (controle difuso de constitucionalidade), "special appeals" (recurso repetitivo), and "concentrated constitutional control" (controle concentrado de constitucionalidade) proceedings have an impact on the Brazilian domestic legal system.

In practical terms, such STF decisions would result in the immediate and automatic cessation of the effectiveness of final tax judgments handed down in favor of taxpayers. According to the Federal Attorney for the National Treasury such a fact would mean the tax authorities would have grounds to charge taxes once deemed unconstitutional by a decision protected by substantive res judicata, if the tax triggering event related to such taxes occurs after the decision of the STF that altered past jurisprudence on that particular matter.

It should first be noted that the STF has never stated that its decisions should amount to innovative measures introduced in the existing legal system, capable of causing the prospective termination of the binding effect of prior final and unappealable tax decisions, where these are contrary to the STF’s understanding, as intended by the ordinances issued by the National Treasury Attorney-General's Office.

The Superior Court of Justice (STJ – see Special Appeal No 1.118.893/MG), in its turn, has expressly objected to the conclusions reached in the ordinances, stating that the STF’s decisions, even if in the context of concentrated constitutional control proceedings, do not amount to original legal circumstances capable of resulting in the termination of the binding effect of previous final tax decisions that are contrary to them.

Following this same line of reasoning, one can find countless other decisions handed down by other bodies of the judiciary, for example:

  • Superior Court of Justice (STJ) - Interlocutory Appeal to the Panel in Special Appeal No 1.172.619 - MG. (2009/0242441-4) on November 13;

  • Federal Court of Appeals for the 4th Region- Appeal/required reexamination No. 5006618-44.2012.404.7100/RS P Alegre 7/13. - Appeal/required reexamination No. 5001923-24.2010.404.7001/PR P Alegre 7/13; and

  • Civil Appeal No 5007019-83.2011.404.7001/PR, Porte Alegre 7/13.

that reject the argument put forward by the National Treasury Attorney-General's Office.

Hence, we conclude that the STF’s decisions do not amount to any change in the legal circumstances strong enough to have an impact on the binding effect of judicial decisions contrary to the STF’s understanding. It follows that the conclusions reached by the National Treasury Attorney-General's Office in its ordinances PGFN/CRJ/ No. 492/2011; PGFN/CNJ No. 975/2011 and 396/2013 should, in our view, be definitively ruled out since they not only lack legal grounds, but they shall also find great rejection within the bodies of the judiciary.

Joao Marcos Colussi (jmarcos@mattosfilho.com.br) is a partner of Mattos Filho in Sao Paulo

more across site & shared bottom lb ros

More from across our site

In looking at the impact of taxation, money won't always be all there is to it
Australia’s Tax Practitioners Board is set to kick off 2026 with a new secretary to head the administrative side of its regulatory activities.
Ireland’s Department of Finance reported increased income tax, VAT and corporation tax receipts from 2024; in other news, it’s understood that HSBC has agreed to pay the French treasury to settle a tax investigation
The Australian Taxation Office believes the Swedish furniture company has used TP to evade paying tax it owes
Supermarket chain Morrisons is facing a £17 million ($23 million) tax bill; in other news, Donald Trump has cut proposed tariffs
The controversial deal will allow US-parented groups to be carved out from key aspects of pillar two
Awards
ITR invites tax firms, in-house teams, and tax professionals to make submissions for the 2027 World Tax rankings and the 2026 ITR Tax Awards globally
Pillar two was ‘weakened’ when it altered from a multinational convention agreement to simply national domestic law, Federico Bertocchi also argued
Imposing the tax on virtual assets is a measure that appears to have no legal, economic or statistical basis, one expert told ITR
The EU has seemingly capitulated to the US’s ‘side-by-side’ demands. This may be a win for the US, but the uncertainty has only just begun for pillar two
Gift this article