Class Actions for a Writ of Mandamus Concerning Tax Matters in Brazil: Between Law and Political Philosophy

Abstract

This article aimed to analyze, exclusively from the point of view of Law, whether or not the judicial precedents from the Brazilian higher courts are sufficient to deal with the problems related to the use of class actions for a writ of mandamus concerning tax matters. Faced with a negative answer, the authors sought a multidisciplinary approach and found in Political Philosophy elements to broaden the debate and find more robust solutions to the problems presented. The first part of this analysis focuses on the Brazilian Supreme Court of Justice, which prescribes that lawsuits for a writ of mandamus seeking to assert the right of the taxpayer to tax offset must be filed together with prima facie evidence that the taxpayer is entitled to receive a tax credit, although the credit amount itself is not discussed at this stage of the lawsuit. Then, our research turned to the analysis of whether or not the content of these precedents is compatible with the specificities of class actions claiming several rights affected by a common question of law. To do so, we looked into the nature of trade associations and entities’ extraordinary standing to sue by substitution, which is inherent to class actions for a writ of mandamus, and the need for the common aspects of the dispute to prevail over its individual aspects. Otherwise, the collective relief granted in such class actions would be ineffective. The methodology used was analytical, comparing general objectives (indicated by Political Philosophy) and specific objectives of the legal system (related to Law) with statues, jurisprudence and, mainly, precedents related to the theme. The conclusion of this analytical study between Law and Political Philosophy is that the limitations imposed by the judicial precedents from the Brazilian higher courts are not compatible with class actions for a writ of mandamus.