Repercussão geral e recursos repetitivos: a construção do precedente tributário no direito nacional

Abstract

This study demonstrated how central aspects related to the construction of tax precedents in national law are still maturing. Developing our hypotheses, we adopted as reference the own precedents in Brazilian tax law, especially General Repercussion Theme No. 69. We proposed a reflection on the judicial decision that establishes the precedent derived from general repercussion and repetitive appeals, from a structural perspective, showing how the decision that originates the precedent follows more specific recommendations than a judicial decision produced in a classic individual case, thus requiring specialized study. At this point, we also considered the serial voting model particularly adopted in the STF; as well as the way of deliberation and the reasoning behind the decision that determines on the existence of general repercussion for the extraordinary appeal, in a virtual plenary session. We also proposed a systematization of the essential elements and concepts related to the Brazilian precedents – as a legal question, “themes” (tema), “thesis” (tese), “ratio decidendi”, among others – in order to consolidate and investigate our available technical tools, to identify and adress what the conceptual deficiencies and challenges that complicate the interpretation and application of precedents derived from general repercussion and repetitive appeals. At the culmination of the research, we investigated the production of these precedents, raising the discussions that we deemed fundamental in this regard (including the unconstitutionality of procedural rules or guiding norms that govern the formation of the precedent; the lack of prior publicity and representativeness in the stage of selecting the representative appeal; the absence of representativeness and insufficient reasoning in the stage of verifying the existence of general repercussion; the lack of stability and legal certainty in the overruling of binding tax precedents; and the absence of clear regulations regarding the transition regime for the taxpayer who relied on the Superior Court of Justice´s binding precedent, which was later modified by another binding precedent rendered by the Supreme Court; and, finally, the inadequacies in the treatment of “child-theses” - spin-off theses - and cases that resemble the leading case). The study also discussed more general issues, such as those related to the binding nature of precedents for courts and all administrative entities, as well as the pursuit of equality in the precedent system considering the individual res judicata and the modulation of effects, based on the General Repercussion Theme No. 69 as a reference. The critique presented in the study is that the Brazilian precedent system still lacks advances in procedural theory as well as in the legislation that governs and regulates it