🙏 literal English translation including all the footnotes with fully expanded URLs so that the references are preserved exactly as in the original.
Preventive Writ of Mandamus and Successive Performance Relations
By Danilo Monteiro de Castro and Vanessa Damasceno Rosa Spina
September 22, 2025, 1:16 p.m. – Tax Law
Source: Conjur
The writ of mandamus has been used as an inexhaustible instrument for debating tax issues.
Right here in this column several points related to this specific type of action have already been addressed.
When one thinks that a certain matter has already been overcome and settled, the higher courts surprise us and revisit it, through its submission for judgment under the system of repetitive appeals, in order to create binding precedent.
Without a doubt, it is a valuable movement, since it will prevent future re-discussion and will guide the exercise of the lower courts in this matter.
From this scenario did not escape the discussion regarding the limitation period for filing a preventive writ of mandamus, used in tax matters to prevent the administrative act of assessment from being consummated.
A resumption of the history of this issue is valuable to properly understand it.
Back in 2005, the 1st Section of the Superior Court of Justice, in Embargos de Divergência 546.259, took a position—correctly, in our view—that, in the case of a preventive writ of mandamus, the counting of the 120-day limitation period provided in the then-current article 18 of Federal Law 1.533/1951 does not apply:
“2. With regard to the statute of limitations for the writ of mandamus
(…) It was recognized, at the time of that judgment, that the limitation period only begins to run from the date on which the threat becomes evident, that is, when the companies’ positive results are determined, ‘when the effects of Law 7.799/89 would be concretely felt, in this case, upon the delivery of the annual adjustment.’ The filing, therefore, is not directed against a violation of a right already occurred, but rather against a possible tax assessment. Thus understood, the 120-day limitation period provided in article 18 of Law 1.533/51 for the writ of mandamus is inapplicable.”
To this discussion was added the issue of successive performance tax legal relations, verifiable when the tax is paid monthly by the taxpayer based on the same factual situation and the same matrix rule of tax incidence.
In such a case, the just fear (or threat, to use the terms of item XXXV of article 5 of the Constitution of the Republic) is renewed every month when the duty to pay a tax arises.
The aforementioned understanding regarding the inapplicability of the 120-day limitation period in a preventive action remained unchanged, as exemplified by the decisions rendered in the judgment of the Internal Interlocutory
Appeal in Special
Appeal 2.097.912, judged by the 1st Panel on 02/26/2024, and in the Internal Interlocutory Appeal in Special Appeal 2.131.375, judged by the 2nd Panel on 08/19/2024:
“(…) consolidated understanding in this Court that the limitation period provided in article 23 of Law 12.016/2009 (article 18 of Law 1.533/51) does not apply in the case of the filing of a preventive writ of mandamus, with the Court’s guidance also firm that, where there is an obligation of successive performance that is periodically renewed, the initial date for counting the limitation period cannot be the date of the rule whose effects are challenged.” (AgInt in REsp 2.097.912)
“The pursuit of non-collection of ICMS constitutes a successive performance relation, which is periodically renewed, and therefore there is no question of the expiration of the right to file a writ of mandamus, since it is an action with preventive character. Thus, the initial date for counting the limitation period cannot be the date of the rule whose effects are challenged.” (AgInt in REsp 2.131.375)
The reference to these judgments shows that there was no divergence between the Panels that make up the 1st Section of the Superior Court of Justice, responsible for resolving tax issues, which did not prevent the submission of the matter for judgment:
Theme 1.273/STJ: “Define the initial date of the limitation period for filing a writ of mandamus, with the purpose of challenging a tax obligation that is periodically renewed.”
Guarantee Preserved
This article is written under the pretext of the judgment of this theme, since some reflections are relevant in view of the content of Theme 1.273/STJ, so much discussed in other articles of this column.
The admission that the questioning of the enforceability of a certain tax always refers to an already consummated administrative act would lead to the idea that a preventive writ of mandamus would be inappropriate, insofar as it would make discussion of future facts (of potential occurrence—imminent enforceability) impossible, even though, monthly, the taxpayer has the just fear of suffering collection of a tax considered undue.
It is evident that if the writ of mandamus is preventive, it is directed against the probable and imminent production of an administrative act which, if performed, will cause harm to the right of the Petitioner, a stage that comprises the field of the threat of harm.
Since there is no administrative act performed (if so, the writ of mandamus would be repressive) there is no way to speak of a limitation period for filing, since the dies a quo is the “awareness of the challenged act.”
Given the impossibility of defining what would be the initial milestone for counting the period due to the nonexistence of a consummated administrative act, considering 120 days from the publication of the law instituting the matrix rule of tax incidence for the filing of a preventive writ of mandamus, especially in successive performance relations, would ultimately imply the complete elimination of this constitutional guarantee in its preventive modality. A full violation of what is provided in item XXXV, article 5 of the Constitution, which ensures the principle of the inafastability of jurisdiction under a state of threat.
Fortunately, the 1st Section of the Superior Court of Justice, in its session on 09/10/2025, kept intact the existing jurisprudence on the subject, setting the following thesis in relation to Theme 1.273:
“The limitation period of article 23 of Law 12.016/09 does not apply to the Writ of Mandamus whose cause of action is the challenge of a law or normative act that interferes in successive tax obligations, given the preventive character of the filing arising from the current, objective and permanent threat of the application of the challenged rule.”
Footnotes
[1] AgInt in REsp n. 2.097.912/PR, reporting Justice Regina Helena Costa, 1st Panel, judged on 02/26/2024, DJe 03/05/2024.
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