STF interrupts judgment on tie-breaking criterion in Carf again

The judgment of actions that question how judgments should be broken in the Tax Appeals Administration Council (Carf) was again interrupted in the Federal Supreme Court, this Thursday (24), by another request for a view (when a minister asks for more time to review the case).

This is the third request for a view in the case. First, in April 2021, minister Luís Roberto Barroso asked for more time to analyze the case shortly after the vote of the rapporteur, the now retired minister Marco Aurélio Mello. Then, in June 2021, after the case returned to trial, Minister Alexandre de Moraes asked for a view again.

The trial was resumed this Thursday (24), precisely with the vote of Moraes.

The ministers are discussing actions that question a part of a law that determined that the tie-breaking criterion in Carf is always in favor of the taxpayer, and no longer by the so-called “quality vote”, in which the president of the Council’s Class defined the case.

The tie-breaking criterion was changed in 2020 through a text included in a provisional measure under analysis by the National Congress.

So far, there are three different understandings between the STF ministers.

First to vote on the case, retired minister Marco Aurélio (rapporteur for the actions) voted for the formal unconstitutionality of the change made by Congress.

In Marco Aurélio’s understanding, the change was made by means of a “jabuti” (that is, a strange change to the provisional measure), which could not have happened, and, thus, would mean that the change was unconstitutional. However, if this understanding is defeated, Marco Aurélio understood that the provision itself (which ends the so-called “quality vote”) is constitutional.

Minister Luís Roberto Barroso voted against the actions (that is, for the constitutionality of the provision that ended the “call vote”), but instituted a rule that allows the Public Treasury to file a lawsuit aimed at restoring the tax assessment in the event of a tiebreaker in favor of the taxpayer.

Minister Alexandre de Moraes voted against the actions in full and for the constitutionality of the device that ended the “capping vote”, without including the possibility of action by the Public Treasury. This understanding was accompanied by ministers Edson Fachin, Ricardo Lewandowski and Cármen Lúcia at this Thursday’s session (24).

With Nunes Marques’ new request for a visa, ministers Dias Toffoli, Rosa Weber, Gilmar Mendes and Luiz Fux have yet to vote.

Only when Nunes Marques releases the process to the agenda will the president of the STF, Minister Luiz Fux, be able to set a new date for the resumption of the trial.