Suspended the right, behold the Politics: the inapplicability of article 15 of Law 12.016/2009 regarding writs of mandamus dealing with indirect taxes

Abstract

Law 12.016/2009 seeks to balance the protection of individual rights with the protection of collective interests by providing for the possibility of suspending the effects, by the president of the court, of a security measure granted. In the case of indirect taxes, such suspension will result in the enforceability of the tax and, consequently, in the passing on of its financial burden to the purchaser of the goods or services. This raises the questions: who will have right to request the refund of the undue payment if the judgment confirms the injunction and grants the security, the de jure taxpayer or the de facto taxpayer? If the answer is the de facto taxpayer (Article 166, CTN), what will happen to the favorable judgment for the de jure taxpayer? Will it become ineffective? We will address this issue by analyzing the controversy surrounding the enforceability of the ICMS’ rate differential on interstate transactions involving non-taxpayers of the tax; a paradigmatic example of the need to contain politics within the bounds of law.