STJ decides that the five-year term for the repetition of undue income tax action starts from the undue payment

The Rapporteur Minister Herman Benjamin granted the Special Appeal, based on the repeated case law of the STJ

The Second Panel of the Superior Court of Justice in the judgment of Special Appeal 1.845.450 / RS maintained the understanding that the five-year statutory limitation period in the Repayment of Undue Repayment related to Income Tax starts counting the undue payment, that is, the date of payment made after submission of the annual tax adjustment statement and not from withholding tax.

In the specific case, the Special Appeal was filed against a ruling by the TRF of the 4th Region that deemed the right to claim the installments collected before the five years preceding the filing of the action to be extinguished, understanding that the right to refund the amounts unduly collected was achieved by prescription. The appellant was based on a divergence of jurisprudence (articles 141 and 142, CTN), claiming that the decision of the Court of origin set as the initial term of the limitation period, the date of withholding tax, while the case law of the STJ comprises the date of delivery of the annual declaration of adjustment, to count the term for the right of action.

Rapporteur Minister Herman Benjamin granted the Special Appeal, based on the repeated case law of the STJ, according to which “the deadline to postpone the repetition of federal tax undue is five years from the undue payment”, recognizing that in the factual situation the declaration was delivered in a period of less than five years, before the lawsuit was filed, indicating the absence of a prescription in the specific case.

Among the precedents cited in the decision, the position established in the Interlocutory Appeal in Special Appeal 1,533,840 / PR, by Minister Mauro Campbell Marques, reported “the prescription of the action for repetition of the tax undue flows from the payment made after the declaration annual adjustment of income tax and not from withholding tax ”, together with the consolidated understanding in the Interlocutory Appeal in Special Appeal 1.276.535 / RS, reported by Minister Assusete Magalhães, clarifying that the withholding of income tax by paying source does not configure advance payment (art. 150, § 1, CTN), since it may still be the object of a refund, depending on the annual adjustment declaration, so that the prescription only starts counting from the payment that is made after the annual declaration of adjustment, this advance payment, since it occurs without prior examination by the administrative authority about its correction (art. 150, caput, CTN).

By: Wilson Sales Belchior

Source: ClickJus

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