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The compensation for moral damage is not strictly fact generator of Income Tax, because it is limited to reconstitute the intangible heritage of the victim, hit by the unlawful act committed. The understanding of the First Section of the Superior Court of Justice (STJ) is that the negative impact of Internal Revenue does not take for exemption, but the talk of new wealth did not occur able to identify additional assets.

The issue was defined in a special appeal against the decision of the National Farm Regional Federal Court of the 4th Region (RS), which, in assessing security warrant, recognized the tax benefit to the funds received, confirming the first instance decision.

The lawsuit was brought by lawyer gaucho Elton John Volker act against the Federal Revenue delegate in Porto Alegre, seeking to avert incidence of withholding taxes on the money indemnity. The taxpayer has received U.S. $ 6 thousand for indemnification of the state of Rio Grande do Sul as compensation for moral damages related to administrative failures that, among other problems, led to the dispatch of mistaken arrest warrant in his name.

The fact that generated the action for compensation was a robbery in which all documents led to Volker. A month later, he heard the news that a robber of a tourism agency, was arrested and identified by his name. Three years later, the assailant fled the prison and arrest warrant was issued in the name of Elton John Volker. The lawyer only became aware of the confusion when the prison was ordered to try to renew the National Portfolio of Proof, only prison that did not happen because to prove all circumstances.

On appeal to the STJ, The National Farm argued that the increase represents compensation accruals. Claimed, moreover, be impossible to grant exemption for lack of legal basis, since only the law could grant the exemption of tax credit.

The rapporteur's appeal in the STJ, Minister Benjamin Herman, found that the money received by way of moral does not involve additional assets and therefore are not subject to the impact of withholding taxes. For the rapporteur, "the compensation for moral damage is not strictly fact generator of Income Tax, because it is limited to reconstitute the intangible heritage of the victim, hit by the unlawful act committed. By denying the incidence of Income Tax, does not recognize the exemption, but the absence of new wealth - come the fruits of capital, labor or combination of both - able to identify additional assets. The compensation for moral damage does not increase the wealth of the victim, only the returns, through the replacement currency, in status quo ante [in the condition it was before]. "

The Minister Benjamin Herman stressed that "the taxation of repairing the damage morale in such circumstances would reduce the full effectiveness of the material principle of full reparation, transforming the Treasury at the same time partner and beneficiary of infringing the pain of the taxpayer. A double aberration. Emphasize that the considerations made in this vote, referring to the effect of RT on the moral, restricted to those individuals as possessing, par excellence, the rights of personality and guaranteed individual, enshrined in the constitutional principle of human dignity " .

After vote-view of the Minister Francisco Falcon, following the full rapporteur, the Section, by majority vote, won the Minister Albino Zavascki Theory, concluded by the removal of taxation by IR on the compensation for moral damage. The trial issue peacefully to the two classes participating in the First Section, responsible for examining the causes for Public Law.

SOURCE: STJ

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