A alegação de compensação tributária como matéria de defesa em execução fiscal : a superação disfarçada de aplicação do precedente firmado pelo STJ no tema repetitivo 294

Abstract

Despite the fact article 16, paragraph 3 of the Tax Enforcement Law prohibits the possibility of claiming compensation in the context of embargoes on tax enforcement, the issue has already been questioned by taxpayers, on the grounds that the aforementioned article prohibits only the compensation claimed after the initiation of tax enforcement. In this context, in 2010, the STJ, through the Repetitive Theme 294, established the thesis that the compensation made by the taxpayer before the filing of the executive action can appear as defense matters in the embargoes on tax enforcement as long as, at the time of the compensation, there was a compensable tax credit and a specific law authorizing compensation. However, recently this debate has resurfaced in the judicial courts and the understanding that seemed peaceful has been entirely changed, so that now only the compensation approved before the filing of the execution can be claimed by the taxpayer. In this sense, the work’s purpose to analyze the possibility of claiming compensation as a matter of defense in embargoes on tax enforcement, as well as to analyze, in the light of the theory of precedents, if the recent decisions of the STJ on the subject, especially the decisions rendered in the case of REsp nº 1.795.347/RJ, are in accordance with Repetitive Theme 294. For this, from the bibliographic methodology, books, scientific articles and judicial decisions on the subject were analyzed. The results found indicate that, in principle, such prohibition does not find support in constitutional principles and, even if it did, there would be the possibility of claiming the previous compensation, approved or not, as a matter of defense in tax enforcement, as well as indicate that the recent STJ decisions on the subject failed to observe the theory of judicial precedents and reverse the meaning established in the Repetitive Theme 294 without, however, expressly stating that it is overruling it. On the contrary, it is affirmed that it is applying it. Thus, it is concluded that there is a material possibility of using the offset as a defense in tax enforcement, and that the way in which the jurisprudence overruled the old understanding was inadequate.