Acquired rights or acquired privileges?

 The Supreme Court plenary considered that a final decision, against which no further appeals are possible, the so-called "res judicataRegarding taxes collected continuously, the ruling loses its effect if the Supreme Court rules otherwise at any point, because, according to legislation and jurisprudence, a decision, even if final and unappealable, produces its effects as long as the factual and legal situation that justified it persists. If there is a change, the effects of the previous decision may cease to exist.

 Minister Barroso, who led the winning argument in the trial, stated that there can be no talk of harm to companies since, in the case under debate, the Supreme Court validated the tax in 2007 and, since then, companies should have started paying it or, at the very least, set aside resources for it.  

 Well, the decision was unanimous and applies only to taxes collected continuously, that is, those whose collection is renewed periodically, such as the Social Contribution on Net Profit (CSLL). In the case of taxes collected only once, such as the ITBI (Property Transfer Tax), which is levied on the sale of a specific property, if there is a final and unappealable decision, since the relationship is unique, this right remains, even after a contrary decision by the Supreme Federal Court on the subject.  

 This makes the resumption of payments mandatory, even for taxpayers who already had final rulings from other courts exempting them from payment. Minister Barroso explained:Taxes are not charged retroactively. Only forward, following the 2007 Supreme Court decision.which is no small feat.  

 Large companies estimate losses in the millions following the Supreme Court's decision, because, in practice, this decision affirms that all companies can be retroactively charged, observing the statute of limitations, for taxes they were not paying due to court rulings.  

 Previously, a taxpayer who had obtained a favorable court ruling would not lose the right declared in a final and unappealable judgment, even if the Supreme Federal Court (STF) decided differently in the future.  

 The only way to “break"The protection guaranteed in the past was through a specific 'rescissory action,' respecting procedural deadlines. Now, decisions on tax matters lose effect from the moment there is a different ruling by the Supreme Federal Court (STF), that is, the finality of judgments has been relativized."   

 The court decided that it will not even apply the “modulation of effects"And with that, companies that were previously exempt will not only have to pay the tax again, but may also be charged retroactively."  

 Let's be honest, this is a decision that generates legal uncertainty. Is this another case of the judicialization of politics? I think not, but we cannot deny that the issue contained in the decision of this specific case stems from shifting to the Supreme Court a matter that should be resolved in Congress.  

 But is the decision fair and does it take other principles into account?

 The fact is that when someone asked us if the Judiciary could "relativize" or "break" the "res judicata," our answer was: no! Because, theres judicata”, alongside the “vested right" It's from "perfect legal actThese are principles guaranteed by the constitution itself, with the aim of consolidating past legal positions; from now on, what will we answer?  

 But we know that things aren't linear in law.  

 To answer the questions, I respectfully borrow from a reflection by Professor Oscar Vilhena Vieira, affiliated with FGV, with a master's degree from Columbia University (USA) and a doctorate from USP, who prompts us to think when he asks in the article “Institutionalized patrimonialism", that "Does the constitutional principle of "acquired rights" serve to protect an "acquired privilege," as if it were an "authentic right"? Or, if "A court ruling, even if unconstitutional, deserves the guarantee of becoming final and unappealable.""?

 He still asks: “How to deal with a final and unappealable court ruling that created a special legal regime benefiting only one taxpayer, distinct from that established by general law, which applies to all other taxpayers?

 The fact is that two fundamental values ​​of the democratic rule of law are in conflict: (a) the requirement that everyone be treated equally before the law and (b) legal certainty, which protects rights legitimately acquired by legal determination, court ruling or contract.

 For the teacher “The idea of ​​a general law, applicable to all, has never been fully incorporated into Brazilian political culture. The capacity of important sectors of the economy or the public service to carve out privileges, in collusion with the legislature or the judiciary, cannot be minimized.The reflection focuses on our structural inequality, which is not accidental, but the result of an institutional consolidation process that grants privileges to certain sectors at the expense of the rest of society.  

 The Supreme Court's decision to relativize the "res judicata" principle is controversial, but, according to Oscar Vilhena Vieira, it has the merit of confronting the perverse logic of Brazilian institutional patrimonialism. In this case, this confrontation occurs at the expense of legal certainty.  

 The mitigation of the consequences of this Supreme Court decision should be modulated to determine a reasonable timeframe from which everyone, without exception, would be obligated to pay the tax.  

 These are the reflections.  

 et If the relativization of "res judicata," "vested rights," and "perfect legal acts" reaches certain careers in the federal, state, and municipal public service, with the goal of eliminating or mitigating historical privileges disguised as "vested rights," things could truly begin to change.