Last Friday (09/17/2021), the Trial concerning Theme No. 962 (RE 1.063.187) has started, held in the Supreme Court, which seeks to rule out the assessment of IRPJ and CSLL on the SELIC rate received by the taxpayer in a refund of undue tax payment.
The Extraordinary Appeal was filed by the National Treasury against the decision handed down by the Local Federal State Court, which held that the requirement was unconstitutional, due to its indemnification nature.
The Reporting Justice, Dias Toffoli, voted in favor of the taxpayer to put forward the following thesis: "The levy of IRPJ [Income Tax] and CSLL [Social Contribution] on amounts related to the Selic rate received as a result of a tax refund is unconstitutional". In his opinion, Toffoli stated that interest on arrears is not subject to income tax and CSLL, because it is intended primarily to recover actual losses, decreases, and does not imply an increase in the creditor's assets.
Justices Ricardo Lewandowski, Alexandre de Moraes, Cármen Lúcia and Roberto Barroso followed the vote of the reporting justice.
So far, the five votes cast were in favor of the taxpayer, ruling out the levy of IRPJ and CSLL on the SELIC rate in tax refunds.
The other Justices are expected to cast their votes until next Friday (Sept. 24, 2016), when the trial shall be concluded.
