Cessação da coisa julgada nas relações tributárias de trato sucessivo: análise dos fundamentos determinantes do julgamento dos Temas 881 e 885 de repercussão geral pelo Supremo Tribunal Federal

Abstract

The present work aims to address, based on the constitutional and procedural principles that govern the subject, the main arguments that were used on the judgement of Themes 881 (Extraordinary Appeal n. 949.297/CE) and 885 (Extraordinary Appeal n. 955.227/BA) of General Repercussion by the Supreme Federal Court, in which the following thesis was established: “1. The Supreme Federal Court’s decisions on incidental control of constitutionality, rendered before the institution of the general repercussion regimen, do not automatically impact the already formed ‘res judicata’, even on tax relations of successive tract. 2. On the other hand, decisions rendered on direct actions or on general repercussion automatically interrupt the temporal effects of final and unappealable decisions in those relations, respected the non-retroactivity, the annual anteriority and the 90-day holding period, according to the nature of the tax.” Therefore, the first problematic to be addressed refers to the institute of the res judicata and its implications, is to say, the notion of legal certainty that is attached to it and its indispensability to the Legal Democratic State. Also, its application to relations of successive tract, specifically on tax matters, will be approached, as well as its particularities in that specific context. Following that line, considerations will be developed regarding the constitutionality control and the general repercussion regimens, mainly concerning the reasons for their existence and their effects when taken into account the system of precedents introduced by the Civil Procedure Code of 2015. After that, the circumstances of the judgement of Themes 881 and 885 of General Repercussion will be addressed, them being: the origin of the discussions, the object of the judgement and the fundaments of the decisions. In this chapter, part of the research will be guided towards distinguishing the controversy involved in those judgements from the one involved in the judgement of Extraordinary Appeal 730.462/SP (Theme 733 of the Supreme Federal Court), which is also a binding precedent. Finally, the implications of the judgements will be examined, mainly those related to the (supposed) destabilization of the res judicata and violation of the constitutional principles that govern the civil procedure, as well as the need – or not – of an adjustment of the effects of the decisions