Bruno Calfat Advogados represented an electric power distribution concessionaire/taxpayer in an appeal of a writ of mandamus decided by the 3rd Specialized Panel of the Federal Regional Court of the 2nd Region, in a dispute regarding the scope of the statute of limitations applicable to the set-off of tax credits recognized by a final and unappealable court decision.
In the appeal, the argument was upheld that the five-year statute of limitations provided for in Article 168, II, of the National Tax Code (CTN) is linked to the exercise of the right to request a refund or to initiate the offset procedure, and not to the full exhaustion of the credit. It was further argued that the time limitation presented by the Tax Authorities (IN RFB No. 2,055/21, COSIT Consultation Solution No. 239/19, and COSIT Normative Opinion No. 11/14) violates the principles of the reservation of Complementary Law and tax legality (see Arts. 150, I, and 146, III, “b,” of the 1988 Constitution).
In ruling on the appeal, the TRF-2 upheld the taxpayer’s argument, reversing the judgment to grant the injunction. In addressing the issue, the ruling established that the statute of limitations applies only to the initiation of the offset procedure, expressly noting the absence of a statutory deadline for the full exhaustion of a tax credit already judicially recognized. It was also emphasized that the subsequent enactment of Article 74-A, paragraph 2, of Law No. 9,430/96, as amended by Law No. 14,873/2024, reinforces this understanding by providing that the five-year period refers to the filing of the first offset return.
The decision represents an important precedent in favor of legal certainty, the authority of res judicata, and strict legality in tax matters, by safeguarding the taxpayer’s right to fully utilize a judicially recognized tax credit without undue administrative limitations.