Os limites da coisa julgada no direito tributário

Abstract

Since 2016, with recognized general repercussion, the Extraordinary Appeals No. 949,297 and 955,227 are currently pending judgment by the Federal Supreme Court. Both appeals, in spite of having fundamentally the theme of the institution of the CSLL, deal directly with the limits of the res iudicata in the national legal system and its application to the branch of the tax law. This work will seek, through a reinterpretation of the res iudicata in the light of the doctrine of Niklas Luhmann, to point out the correct approach that the institute must take in relation to the Tax Law. It is argued here that the res iudicata, as a mechanism provided by law itself for the systemic closure necessary for legal certainty, cannot be subject to the various considerations and relativizations to which the various principles of the national legal order have been subjected daily. On the contrary, having a legal rule character, the res iudicata deserves to have its limits demarcated and respected, so that the security of the citizens is preserved. This does not imply, as will be presented, its absolutization, allowing the existence of antinomies in the legal system. However, the necessary corrections must be made in accordance with the alternatives chosen and presented by positive law, respecting the specificities of tax law and its specific methodology.