TAX COMPENSATION BEFORE RES JUDICATA: CRITICAL ANALYSIS OF THE PARADIGMATIC DECISION FROM THE ADMINISTRATIVE TAX APPEALS COUNCIL

Abstract

Abstract: This article intends to analyze the the constitutionality and legality of tax compensation before claim preclusion (res judicata), through the case study of the paradigmatic decision given by the 4th Chamber of the Administrative Tax Appeals Council in the judgment of the administrative process nº 10880.906342/2008-96, on March 22, 2018. We will use the hypothetical-deductive scientific method and adopt a double research technique: bibliographic and empirical. Initially, we studied the the main doctrinal understandings about the institute of tax compensation. Finally, the empirical research included the collection of data to verify the current legislation and jurisprudence, both judicial and administrative, from the Administrative Tax Appeals Council, on the possibility of tax compensation before res judicata. Thus, we concluded that it is possible to compensate tax credits before claim preclusion of the respective judicial decision whenever the substantive matter is a norm that has already been declared unconstitutional by the Federal Supreme Court, and the res judicata of the Supreme Court's decision is not essential, only the publication of the signed thesis, according to article 1040, item III, from the Civil Procedure Code.