STJ will decide whether the deadline for using tax credits expires in five years

On March 31, 2026, the 1st Panel of the Superior Court of Justice (STJ) assigned, under the repetitive-appeals procedure (Topic 1428), the controversy over the statute of limitations applicable to the offsetting of judicially recognized tax credits. The Court will define whether the five-year deadline of article 168 of the CTN applies only to the start of tax offsetting or also to its full completion, and will also analyze the impact of the credit qualification request on the counting of that period.

In this context, the issue stems from the interpretation of the scope of this five-year deadline. The debate is whether the taxpayer needs only to start offsetting within that period or must fully exhaust the credit within the same window, under penalty of losing the remaining balance. The definition is especially relevant for companies with credits below R$ 10 million, which are not subject to the specific regime applicable to "large creditors" under IN No. 2.314/2026 of the Federal Revenue.

The discussion became urgent after a relevant change in case law. While the 1st Panel of the STJ had already held that the five-year deadline applied to the full use of credits, the 2nd Panel understood that a single PER/DCOMP submission within that period was enough to guarantee full use of the credit until exhaustion. In March 2025, however, the 2nd Panel changed its position in REsp 2.178.201/RJ, evidencing the need to unify the understanding on the topic.

With the assignment, a nationwide suspension of cases on the topic pending at the STJ or at the lower courts in the appellate phase was determined. Even so, the scenario warrants taxpayer attention. For taxpayers with credits below R$ 10 million, it is advisable to review the portfolio of judicially recognized tax credits, considering especially: (i) the date of final judgment; (ii) the stage of credit qualification; (iii) the volume of debts available for offsetting; and (iv) any remaining balance, given the time already elapsed.

Finally, the thesis to be set will have binding effect throughout the country and may directly impact the possibility of fully using credits recognized by judicial decision.