Brazil, Supreme Court of Justice, 15 March 2022, Recurso em Mandado de Segurança No. 67.443
Case overview
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Link to the full text of the decision
General Summary
In April 2020, through an action, "mandado de segurança", the Claimant sought the temporary suspension of the expiration and the postponement of the deadline for the payment of the state tax dues until the end of the COVID-19 pandemic. The Court denied the request. For the Court, it was not possible, without a specific law of the State itself, to extend to state taxes the effects of rules applicable to federal taxes or even the benefits granted by any other unit of the Federation.
Facts of the case
Through "Portaria 12/2012," the Ministry of Finance authorized the postponement of the payment of federal taxes for taxpayers of municipalities covered by the statewide public calamity decree. The Claimant filed a "mandado de segurança". It requested the temporary suspension of the due date and the postponement of the deadline for payment of the state taxes to which the company was subject until the end of the state of public calamity resulting from the pandemic. The Claimant alleged difficulty in eliminating its debts with the public treasury due to the economic crisis generated by the pandemic.
According to the Claimant, Administrative Act 12/2012 of the Ministry of Finance authorized the postponement of payment of federal taxes for taxpayers in municipalities covered by the decree of public calamity at the state level, and this rule, by symmetry, should also be applied to state taxes. She added that the same measure was adopted by Revenue Ordinance 218/2020 for taxpayers in the areas of Espírito Santo placed under a state of calamity by state decree.
In the first degree, the Court of Justice of the State of Espírito Santo denied the request because it is up to the states to legislate on the taxes under their responsibility including regarding exemptions, extensions, and collections and that any decision by the Judiciary contrary to such premise would violate the autonomy of the federated entity and the tripartite division of powers. The Court granted the appeal.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
Although the Judiciary recognizes the adverse effects of COVID-19 on economic activity, the Federal Supreme Court (STF) judged a similar case. In this case, it declared that it is not up to the judge to decide who should or should not pay taxes or even what public policies should be adopted to mitigate the damage of the pandemic, under penalty of substituting the actions of the managers responsible for conducting the destiny of the State.
The Court analyzed that the intervention of the Judiciary in the discretionary sphere of a political choice should be limited to the examination of legality and constitutionality, under penalty of offending the principle of separation of powers, considering that it is not up to the judge to act as a positive legislator.
Conclusions of the deciding body
For the Court, it is not possible, without a specific law of the state itself, to extend to state taxes the effects of rules applicable to federal taxes or Simples Nacional, or even the benefits granted by some other unit of the Federation. Because of this, the Court upheld the state court decision.
Fundamental Right(s) involved
- Freedom to conduct a business
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 6, Brazilian Federal Constitution
- Freedom to conduct a business, Art. 6, Brazilian Federal Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of capital
- Health v. freedom to conduct a business
Other notes
On "type of measure challenged": administrative Act 12/2012 of the Ministry of Finance authorized the postponement of federal tax payments for taxpayers in municipalities covered by the decree of public calamity at the state level
On"type of procedure": "Mandado de segurança”: action to protect liquid and certain rights, not protected by habeas corpus or habeas data, whenever, illegally or with abuse of power, any natural or legal person suffers violation or risk of suffering it by the authorities (Art. 5 LXIX – LXX Federal Constitution of Brazil 1988; Act. 12016/2009 art. 1).
