Modulation of the effects of the declaration of unconstitutionality of icms in the pis and cofins tax base

Abstract

Introduction: The purpose of this paper is to answer the research problem: Are taxpayers entitled to a refund of amounts unduly paid in the past? What are the advantages of modulating effects, considering the balance between legal certainty and tax justice? Are retroactive effects due only to taxpayers who had already filed lawsuits before the decision or also to those who will file after the decision and obtain a favorable ruling? Objectives: To analyze the arguments for and against the modulation of effects after the publication of Topic 69. And as specific objectives, to analyze the controversy raised in defense matters in lawsuits claiming the return of amounts unduly paid in the past. To expose the foundations and principles of tax law; to argue about each of the rights in conflict and suggest a weighting between them. Methodology: STF decisions involving the calculation basis of taxes, to make a comparison with each other, in orter to understand jurisprudential trends in Brazil. Analyzing the advantages and disadvantages of modulation of effects, considering the balance between legal certainty and tax justice. Conclusion: Suggesting a solution inspired by the case of juvenile offenders in Rio de Janeiro, we suggest a collective agreement between the Union, taxpayers and business entities. With a model that would include a gradual transition to exclusion from the ICMS, tax compensation for companies affected by rescission actions, a time limit on reviews. With an approach that would balance public and private interests, reducing litigation.