ABOUT THE LEGALITY OF THE MAXIMUM ESTABLISHED BY ORDINANCE PGFN 448/2019 AND RFB NORMATIVE INSTRUCTION NO. 1891/2019 TO OBTAIN THE SIMPLIFIED INSTALLMENT PAYMENT REGULATED BY LAW 10.522/2002

Abstract

On 10/02/2018, the Superior Court of Justice affected REsp 1724834/SC, REsp 1679536/RN and REsp 1728239/RS to be judged according to the Repetitive Appeals system. The aim is to standardize the following controversy: Whether it is possible for an infralegal act to set a maximum for simplified installment payments or if this limitation offends the rule set forth by Law 10.522/2002. From a pragmatic perspective, we see a tendency to see this practice as illegal. However, from our point of view, this issue has been superficially addressed by the Courts. The fact that Article 14c provides nothing about the possibility for the Executive to create additional requirements is insufficient circumstance to support a judgment of illegality. What item II of article 5 of the SC requires is only that the law has given the Executive Power, even if implicitly, the power to regulate the subject, and that the infralegal act is compatible with the law. That is why a greater hermeneutic effort is needed, which also takes into account the possibility of an implicit authorization. To do so, we propose two reasons to argue for such a permit. The first of these lies in the fact that Article 14c granted the Public Treasury permission to grant or not installment payments. The second is based on the fact that the construction of the installment rules based solely on the statements of Law 10.522/2002 leads to the existence of an antinomy between them, which is not surpassed by the criteria of hierarchy, specialty and chronology.