The Federal Appellate Court in the 4th Region rendered an important decision concerning the possibility to provide relative effects to res judicata in tax matters. The Treasury Attorney Office enacted Opinion PGFN No. 492/2011, according to which res judicata must be granted relative effects, regardless of the filing of a Rescinding Lawsuit, if the Supreme Court: i) issues a decision with a contrary position under concentrated constitutionality control; ii) decides in the opposite sense in an Extraordinary Appeal concerning a matter with general repercussion, under diffuse control and even without the enactment of a ruling by the Senate; iii) renders a decision by its Full Board, also under diffuse control and regardless of a ruling by the Senate, and that position is applied to subsequent cases.

Based on this opinion, the National Treasury has been disregarding the existence of final decisions favorable to taxpayers concerning the payment of taxes and, as a consequence, it has been attempting to charge the amounts that were not collected.

During trial of Appeal No. 5006618-44.2012.404.7100, the Federal Appellate Court of the 4th Region ruled that a definitive decision cannot be disregarded by the Federal Government – including when the jurisprudence is later consolidated in the opposite sense – since only the Judiciary may decide on the continuity of effects of res judicata. In summary, Opinion PGFN No. 492/2011 was not applied under the argument that it violates the segregation of powers

(Appeal No. 5006618-44.2012.404.7100)