The agenda with the cases that will be judged in 2023 by the Federal Supreme Court (STF) it has not yet been defined and, therefore, has not been disclosed, but some actions that are in the queue call attention due to the impact they may have on the Brazilian economy.
See the processes of economic interest that may be close to being judged.
Beginning of ICMS Difal collection
One of the first cases that should go to trial is the one that discusses the beginning of the collection of Difal of ICMS. The discussion was in a virtual environment, but Minister Rosa Weber asked to highlight some points and promised to take the issue to plenary as soon as the ministers return from recess in February.
Ministers must analyze whether the supplementary law to regulate the tax needs to comply with the nonagesimal and annual priorities before the start of tax collection. The issue is particularly relevant for segments that work with the so-called e-commerce, since taxation is applied to purchases made by end consumers from another state.
The Federal Revenue intended to start collecting the tax in 2022, but as the law was published in January, taxpayers defend that the validity begins in 2023.
Governors of 15 states stated that the collection losses for the states are estimated at BRL 11.9 billion if the understanding prevails that Difal of ICMS can only be charged in 2023.
Transfer of ICMS credits between states
After deciding to waive the levy of ICMS on the transfer of goods between establishments of the same owner located in different states, the ministers of the STF must decide when the measure comes into effect.
The discussion is to define whether taxpayers, even if they do not pay ICMS on the transfer of goods, have the right to keep the credit obtained when buying these goods and also transfer this credit to their branches in other states.
Business sectors allege that they can lose billions a year in tax credits, depending on the definition – the situation affects everything from industry to agribusiness and retail.
Dismissal without just cause
Started 25 years ago, the case that analyzes the possibility of companies dismissing without just cause may be finalized in the first half of 2023.
The lawsuit discusses whether the President of the Republic can, by means of a decree, remove or include the country in an international norm without the approval of the national congress. The res judicata concerns when then-President Fernando Henrique Cardoso canceled Brazil’s adherence to Convention 158 of the International Labor Organization (ILO), which stated that layoffs could not be “arbitrary”.
The Constitution establishes that it is up to Congress to define adherence to international treaties, agreements or acts. Therefore, the National Confederation of Agricultural Workers (Contag) questions the constitutionality of the decree.
Collection of PIS and Cofins on bank revenues
The STF will define whether financial institutions must contribute PIS and Cofins on their financial income. To this end, ministers need to interpret whether these resources are billing and, therefore, must compose the tax calculation base. Currently, this does not happen.
The impact of this measure is around R$ 115.2 billion for public coffers.
Reduction of tax refunds to exporters
The ministers of the STF must decide whether the Executive Branch can change the percentages of tax refunds in Reintegra.
The year after it was launched, a federal government decree reduced the percentage of credits that exporters would be entitled to.
The entities involved argue that there could be no changes of this type because Reintegra is not a tax benefit, but a policy to reduce tax residues and make national products more competitive.
According to the Attorney General of the National Treasury (PGFN), if the Union loses, there could be a financial impact of BRL 7.3 billion annually on public coffers and a return of BRL 42.56 billion to exporting companies.
Compensation ceiling in labor claims
Four actions that were brought together and will be judged together with general repercussion question the ceiling established by the 2017 labor reform for the value of indemnities for moral damages. The established value is 50 times the worker’s last contractual salary.
The rapporteur of the case, Minister Gilmar Mendes, voted with the understanding that the criteria for stipulating the amount of compensation are for guidance, so it would be possible to establish values that exceed the maximum limits provided for in specific cases.
Intermittent work contract
The legality of the intermittent employment contract may also enter the agenda of the STF. The labor reform established that with the intermittent employment contract, the worker only assists the employer when called upon and if available, without working a fixed shift.
The rapporteur for the action, Minister Fachin, voted for the unconstitutionality of the intermittent employment contract, accompanied by Rosa Weber. Ministers Nunes Marques and Alexandre de Moraes understood the constitutionality of the model.
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