Repercussão geral em matéria tributária: vinculação da administração pública de ente federado que não compôs a relação jurídica processual do recurso extraordinário

Abstract

The 2015 Civil Procedure Code imposed a new paradigm by attributing binding effectiveness to a series of decisions, establishing a true system of binding precedents. In the Tax Law, this new system is very useful, as there are various interpretative conflicts between tax authorities and taxpayers, including repetitive disputes. These conflicts are resolved by decisions involving constitutional jurisdiction, which are given the binding effect. However, doubts arise as to the effects of these decisions, so the central problem of this work is: in a case in which the decision was expressed in an appeal, recognizing a general repercussion, would the decision have the power to bind the Public Administration of a federated state that was not part of the procedural legal relationship (appellant or respondent) of the appeal? Using a deductive method, the analysis was based on theoretical references on the theory of judicial precedents in brazilian law. The aim, therefore, is to discover the appropriate dogmatic response to the proposed problem. To achieve this, the following steps were considered: to develop fundamental notions about a theory of judicial binding precedents; to check if the ability of the judgment, given an appeal with general repercussion, can constitute a binding precedent; verify if the Public Administration, in the administrative context, is submitted to the decision; as well as evaluate which federated states would be linked to the decision and what is the extension of this subordination, therefore, analyze the possibility of binding the Public Administration of a federated state that did not form part of the legal procedural relationship of the extraordinary paradigm appeal. Ultimately, the mentioned course of action enabled the validation of this binding in face of the proposed problem.