The Superior Court of Justice (STJ), under the system of repetitive appeals, has consolidated an important thesis in tax litigation: the 120-day decadential period provided in Article 23 of Law No. 12,016/2009 does not apply to writs of mandamus aimed at challenging successive tax obligations. The ruling was issued in REsp 2.103.305/MG (Theme 1273), involving a dispute over the ICMS rate levied on electricity and telecommunications services in the State of Minas Gerais.
Background of the Case
The taxpayer challenged the collection of ICMS at a rate higher than the standard (modal) state rate, a matter previously addressed by the Supreme Federal Court (STF) in RE 714.139 (Theme 745), with general repercussion recognized. The State of Minas Gerais argued that the deadline to file a writ of mandamus was 120 days from the enactment of the law instituting the levy. It further contended that treating the obligation as successive would undermine legal certainty and create an indefinite reopening of tax disputes.
STJ’s Reasoning
The reporting Justice emphasized that the law constitutes only a prerequisite for the tax obligation but does not exhaust it. What gives rise to the concrete injury to the taxpayer is the periodic enforcement of the levy. Accordingly, the Court held that:
- The 120-day decadential period does not apply when the cause of action concerns the challenge of a rule affecting successive tax obligations;
- In such cases, the writ of mandamus assumes a preventive nature, given the objective and ongoing threat of application of the rule;
- The applicable period is the five-year statute of limitations governing the refund or offset of undue tax payments.
Justice Paulo Sérgio Domingues considered the possibility of adopting the first assessment of the tax as the initial term for the decadential period but ultimately rejected the thesis due to lack of consistent support in the Court’s precedents.
Practical Implications
The precedent has binding effect on all lower courts, with the exception of the STF, and strengthens the possibility for taxpayers to file writs of mandamus at any time to contest periodic levies, such as ICMS on electricity and telecommunications, ISS on continuous services, or social security contributions on payroll, among others.
According to the doctrine already applied by the STJ and now confirmed under the repetitive appeals regime, there is no decadential period for the filing of writs of mandamus in tax matters involving successive assessments. Taxpayers, however, remain subject to the five-year statute of limitations to claim refunds.
This decision reinforces the preventive protection of taxpayers, enhances legal certainty regarding the use of writs of mandamus as an appropriate procedural remedy, and compels state and municipal treasuries to reassess their litigation strategies in cases concerning successive tax obligations.