Law 14.973/20241, recently sanctioned, regulates payroll tax relief, introducing countermeasures to assist the government in meeting its fiscal target for 2024. Among these measures is the redefinition of the rules concerning the correction of judicial and administrative deposits in cases involving the Union, any of its agencies, funds, autarchies, foundations, or dependent federal state-owned companies.
Under the new legislation, deposits may be subject exclusively to an “index that reflects inflation,” such as the Broad Consumer Price Index (IPCA). This change represents a significant departure from previous legislation, which established only the SELIC rate as the applicable correction index, a standard in place for the past 26 years.
This situation is particularly relevant in the tax context, as deposits suspend the enforceability of tax liabilities. Thus, all risks arising from the enforceability of the debt are suspended, such as registration in restrictive credit databases, the inability to issue a tax clearance certificate, and protests.
At the end of the dispute, if the taxpayer succeeds in their claim, they can withdraw the deposited amount, which was previously returned based on SELIC correction.
Now, the new legislation (14.973/2024) provides for monetary correction by an official index that reflects inflation, as set forth in Article 37, Section II2, in a general provision open to interpretation.
Furthermore, while the Federal Government adopts the IPCA as the official inflation index, its use is not explicitly stated in the said legislation, leaving room for the Executive Branch to regulate the matter, including in relation to previously made deposits, a fact that further increases legal uncertainty in the country.
It is essential to clarify that the SELIC rate, as a hybrid index, combines monetary correction and interest. When the new legislation provides for the adoption of an index that reflects only inflation, the taxpayer will no longer be compensated for the time they gave up the availability of the deposited amount, resulting in a significant reduction in the amount to be withdrawn if they prevail in their defense.
Moreover, there is uncertainty regarding the application of the law and its respective regulation by the Executive Branch, in the event the taxpayer opts for the judicial deposit of the tax credit and ultimately loses the dispute.
In this case, depending on how the legislation is applied, the taxpayer may be required to pay additional amounts beyond the deposited ones, as the tax credit is corrected by SELIC, while the deposit tends to be corrected by IPCA.
In general terms, this change establishes unequal treatment by the Union, as previously mentioned, tax credits are corrected by SELIC, while under the new alteration, the taxpayer making the deposit will no longer be entitled to receive default interest. By comparison, SELIC is currently 10.75%3, while the IPCA accumulates 4.24%4 over 12 months.
In practice, this change may discourage the practice of judicial deposits, as a taxpayer who chooses to pay a tax they deem undue can later request the refund of the overpayment or offset it, with correction based on SELIC, while the taxpayer opting for a deposit will have their amount corrected by IPCA, resulting in a lower financial benefit.
Thus, given the uncertainties surrounding the matter, there will likely be judicial challenges from taxpayers, particularly considering the disparity between the correction applicable to tax debts (SELIC) and the deposits made to secure them (IPCA).
The Tax Law Department of Marins Bertoldi Advogados is closely monitoring developments on the subject and is fully available to clarify any doubts and delve deeper into each business reality, especially given the importance of this controversy in defining strategies for handling cases.
By Matheus André Ribeiro and Rafael Pilch de Matos
1 Available online at: https://www.planalto.gov.br/ccivil_03/_Ato2023-2026/2024/Lei/L14973.htm. Accessed on September 30, 2024.
2 Art. 37. As ordered by judicial authority or, in the case of extrajudicial deposits, by the competent administrative authority, there will be: (…) II – withdrawal of amounts by the holder, increased by monetary correction based on an official index that reflects inflation.
3 Available online at: https://www.bcb.gov.br/controleinflacao/taxaselic. Accessed on September 30, 2024.
4 Disponível online em: https://www.ibge.gov.br/explica/inflacao.php. Acesso em 30 de setembro/24.
