A, Minister Alexandre de Moraes of the Federal Supreme Court argued that there is no “deviation of purpose in changing the rates” because the decree “respected the established legal limits”.
The magistrate suspended only an excerpt from the decree on the taxation of risk operations, as they do not present a dynamics of credit operations.
According to Moraes, “there was no deviation of purpose” in the change of rates and also in the incidence of IOF in open pension entities and other entities equated with financial institutions. Thus, according to the order, there was no reason to maintain the precautionary suspension order decreed by the minister himself. “Absent the irreparable risk arising from any irregular tax exaction in large amounts,” he said.
The minister also stressed how Lula’s decree destroyed from previous editions of presidential decrees, “whose validity was endorsed several times by this supreme court.” In making such an indication, Moraes quoted “numerous decisions” of the STF validating the increase of IOF’s rates in FHC, Lula and Bolsonaro governments.
“The present hypothesis, regarding the change in the rates of the IOF, did not depart from the previous ones, where this Court dismissed any vice of unconstitutionality out of respect for the principle of legality, legal parameters and lack of change in the legal nature of the tax,” he added.
VGBL
The minister also wrote, in his decision on the constitutionality of decrees related to the increase in tax rates on financial operations (IOF), that “there was no deviation of purpose” in the incidence of IOF Insurance on Free Benefit Living Plans (VGBL), as stipulated by the Presidential Decree.
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“With the new information brought to the file and the arguments set out and debated at the conciliation hearing, it is possible to state that, in relation to the aliquot change and also about the incidence of IOF in open social security entities and other entities equivalent to financial institutions, there was no deviation of purpose,” wrote Moraes.
According to him, consequently, “there is no need to maintain the precautionary, because absent the irreparable risk arising from any irregular tax exaction in large amounts.”
The magistrate also pointed out that the Court recognized, in 2024, to frame these operations as a fact that generates the tax in question.
