Background
Sociedade de Educação Tiradentes S.A., a Brazilian educational company, filed an ordinary action in the Federal Section of Sergipe seeking restitution of approximately R$ 442,695.02 in corporate income tax (IRPJ) and social contribution (CSLL) payments it alleged were made in error during 2018. When served with process, the National Treasury (Fazenda Nacional), through its attorneys at the Office of the Attorney General of the National Treasury (PGFN), formally acknowledged the validity of the plaintiff’s claim rather than contesting it. The first-instance court accepted that acknowledgment, terminated the case on the merits, and ordered the Treasury to pay attorney’s fees of 10% of the judgment amount — reduced to 5% if paid within fifteen days of final judgment — under Articles 85 and 90 of the Code of Civil Procedure (CPC).
The Treasury appealed to the Fifth Regional Federal Court (TRF-5), arguing that Article 19, § 1º, I of Law 10.522/2002 exempts it from attorney-fee awards whenever it formally acknowledges a claim, including in fiscal-enforcement proceedings. The TRF-5 disagreed, holding that the exemption applies only when the subject matter of the case falls within one of the specific categories enumerated in items I through VII of the article’s caput — such as settled Supreme Court precedent, binding administrative opinions, or tax-authority guidelines — and that a bare acknowledgment of liability is not enough. Finding none of those categories present, the appellate court upheld the fee award and imposed additional appellate-stage fees. The Treasury then brought a recurso especial to the STJ, asserting a conflict with Article 19, § 1º of Law 10.522/2002.
The case was pre-selected by the TRF-5’s vice-presidency as a candidate for binding-precedent treatment given the volume of similar disputes in the federal courts. The STJ’s Precedent Management Committee confirmed that selection, noted that panels within the Court’s own First Section had issued conflicting rulings on the same interpretive question, and recommended that the issue be resolved through the recurso repetitivo mechanism. The Federal Public Ministry also supported designation, noting the need to settle a controversy that was generating large numbers of parallel appeals despite an existing STJ summary rule (Súmula 83) that was not definitively resolving the matter.
The Court’s Holding
The First Section, voting unanimously on 19 June 2026, formally designated REsp 2239250 — together with REsp 2.239.244/CE — as lead cases representing Repetitive Controversy No. 818/STJ. The precise legal question certified for binding resolution is: “To determine whether the exemption from an attorney-fee award against a federal public entity, referred to in Article 19, § 1º, I of Law 10.522/2002, is limited to the scenarios in items I through VII of the caput, or whether that list may be considered non-exhaustive.” The Court did not yet decide the merits of that question; it instead set the machinery for a binding ruling in motion.
Pursuant to Article 1.037, II of the CPC, the Section simultaneously ordered the nationwide suspension of all pending second-instance proceedings that turn on the same question. Additional procedural steps mandated by the ruling include: notice of the designation to all STJ Justices and to the presidents of all Regional Federal Courts; and a fifteen-day period for the Federal Public Ministry to file a formal opinion under Article 1.038, III of the CPC.
In his reporting opinion, Minister Sérgio Kukina noted that the STJ’s own panels had diverged on the merits: the Second Panel had recently held (AREsp 2.749.113/RJ, May 2025; REsp 2.176.841/RJ, March 2026) that the enumerated list in Article 19 is exhaustive and that mere acknowledgment of a claim does not suffice to avoid fees, while the First Panel had reached the opposite conclusion in at least one case (REsp 2.023.326/SC, August 2025), reasoning that a systematic reading of the statute — especially amendments introduced in 2013 and 2019 — supports a broader, non-exhaustive interpretation. He also flagged that the constitutional validity of the underlying exemption provision is pending before the Supreme Court (STF) in ADI 5.405/DF, but concluded that, because the statutory text remains in force and the interpretive question is purely one of infra-constitutional law, there is no bar to the STJ proceeding under the repetitive-precedent track.
Key Takeaways
- The STJ has formally certified as a binding-precedent question whether a federal entity’s attorney-fee exemption under Article 19, § 1º, I of Law 10.522/2002 is limited to the seven enumerated categories in the caput (covering settled case law, approved PGFN opinions, AGU guidelines, binding Supreme Court rulings, and federal tax-authority summaries) or whether it extends to any acknowledgment made under the statute.
- All second-instance proceedings nationwide that present this same question are now suspended pending the STJ’s binding ruling — a significant practical consequence for the large volume of federal tax-restitution suits in which the Treasury routinely acknowledges liability.
- The STJ’s own panels were split: one line of authority treats the Article 19 list as exhaustive (no fees waived unless the case fits an enumerated category); another treats it as open-ended (fees waived whenever the Treasury acts within any authorization the statute provides).
- A parallel constitutional challenge to the exemption provision (ADI 5.405/DF at the STF) was suspended mid-deliberation in early 2025 and remains unresolved, adding an additional layer of uncertainty that the STJ noted but declined to treat as a reason to delay its own proceedings.
Why It Matters
The attorney-fee question at stake is financially significant across a large class of federal tax litigation. In routine tax-restitution and annulment actions, the Treasury regularly concedes liability — sometimes because an administrative review confirms the taxpayer’s position, sometimes because the amounts involved do not justify continued litigation. Whether those concessions trigger a fee award of up to 20% of the judgment value (under CPC Article 85) or instead qualify for the statutory exemption determines the real economic cost of these acknowledgments, both for the public fisc and for taxpayers’ counsel whose compensation depends on the outcome. A binding ruling that the list is exhaustive would maintain a strong financial incentive for the Treasury to resist claims until they fit a recognized category; a ruling that the list is open-ended would effectively remove the fee risk from a broader range of concessions and could alter litigation strategy on both sides.
More broadly, the case illustrates the tension between the 2013 and 2019 legislative reforms that expanded the PGFN’s authority to stand down in litigation — aimed at reducing court congestion — and the constitutional protection of attorneys’ property rights in their fees, which the STF is separately examining in ADI 5.405/DF. Until both the STJ’s statutory ruling and the STF’s constitutional ruling are final, federal courts and litigants face layered uncertainty about when attorney’s fees are owed in cases the federal government chooses not to contest.