Post by firoj1313 on Feb 12, 2024 8:26:41 GMT
The company Rota do Sol Indústria do Vestuário obtained an injunction from the Federal Supreme Court to remove the requirement for a prior deposit as a condition for the admissibility of an administrative appeal. Furthermore, Minister Joaquim Barbosa ordered the suspension of the trial until the merits of the matter are decided. It appears in the records that the company filed a Writ of Mandamus to guarantee its right to file a voluntary administrative appeal, without submitting to the prior deposit requirement. The request was denied. Against the sentence, Rota do Sol appealed to the Federal Regional Court of the 4th Region, which maintained the previous decision. Therefore, the company filed special and extraordinary appeals.
The company's lawyers highlighted that Rota do Sol would be “suffering tax enforcement proceedings for the alleged tax credit, which had its discussion in the administrative process interrupted by the requirement for prior deposit”, which would characterize periculum in mora (danger in delay). Joaquim Barbosa noted that as the two decisions on the merits were unfavorable to the company, “the requested Finland Email List measure cannot be confused with the simple attribution of a suspensive effect to the extraordinary appeal, given that there is no decision that benefits the applicant from being temporarily restored”. For the minister, accepting the precautionary action would be analogous to the anticipation of the requested protection.
He recalls that the STF exceptionally allows the granting of precautionary measures in extraordinary situations, “marked by an unequivocal risk of the irreversible loss of the alleged right”. The minister stated that the Supreme Court is analyzing the constitutional validity of the prior deposit as a condition for the admissibility of the administrative appeal on tax matters in Extraordinary Appeal 388.359. As the appealed ruling adopted constitutional grounds, Joaquim Barbosa considers it prudent to grant the requested relief, “until it is possible to examine in depth the admissibility of the extraordinary appeal in question”. But it is not possible to suspend the enforceability of the tax credit due to a court decision, even because the extraordinary appeal “is limited to the discussion about the validity or otherwise of the prior deposit”. The minister partially accepted the request.
The company's lawyers highlighted that Rota do Sol would be “suffering tax enforcement proceedings for the alleged tax credit, which had its discussion in the administrative process interrupted by the requirement for prior deposit”, which would characterize periculum in mora (danger in delay). Joaquim Barbosa noted that as the two decisions on the merits were unfavorable to the company, “the requested Finland Email List measure cannot be confused with the simple attribution of a suspensive effect to the extraordinary appeal, given that there is no decision that benefits the applicant from being temporarily restored”. For the minister, accepting the precautionary action would be analogous to the anticipation of the requested protection.
He recalls that the STF exceptionally allows the granting of precautionary measures in extraordinary situations, “marked by an unequivocal risk of the irreversible loss of the alleged right”. The minister stated that the Supreme Court is analyzing the constitutional validity of the prior deposit as a condition for the admissibility of the administrative appeal on tax matters in Extraordinary Appeal 388.359. As the appealed ruling adopted constitutional grounds, Joaquim Barbosa considers it prudent to grant the requested relief, “until it is possible to examine in depth the admissibility of the extraordinary appeal in question”. But it is not possible to suspend the enforceability of the tax credit due to a court decision, even because the extraordinary appeal “is limited to the discussion about the validity or otherwise of the prior deposit”. The minister partially accepted the request.