On the Constitutionality of Article 82, § 3, of the CPC and the waiver of advance payment of court fees in the enforcement of attorney’s fees.

Law No. 15.109/25 amended the Code of Civil Procedure (CPC) to exempt lawyers from the advance payment of court costs in collection actions and in the execution of attorney’s fees, stipulating that the respective costs will ultimately be the responsibility of the defendant or the debtor, if the latter gave rise to the action.

The objective of the law is to prevent lawyers from having to bear unnecessary expenses to collect, precisely, the consideration for their work — attorney’s fees, which are of an alimentary nature.

Recently, when we filed a judgment enforcement proceeding seeking the collection of attorney’s fees of this nature, our office was surprised by a decision issued by the judge of the 23rd Civil Court of the Central Forum of the São Paulo District, who denied the request for exemption from the payment of court costs.

The main basis for the decision was the alleged unconstitutionality of the current wording of Article 82, § 3, of the Code of Civil Procedure.

According to the magistrate, court fees are of a tax nature—more precisely, a service fee—and therefore, waiving their payment would constitute a case of tax exclusion, under the terms of article 175, item I, of the National Tax Code. In his words, the rule would represent “a legal waiver of tax payment.”

The judge also cited article 151, item III, of the Federal Constitution, according to which the Union is prohibited from establishing exemptions from taxes under the jurisdiction of the States, the Federal District, or the Municipalities—the so-called heteronomous exemptions. He further emphasized that tax exemption rules must be issued by the federative entity competent to establish the respective tax.

In short, it was understood that the rule in question—inserted by means of federal law—improperly promoted the exemption of a tax under state jurisdiction.

On the other hand, if the respective waiver is interpreted as a suspension of the enforceability of court costs , it was understood that there would be a formal unconstitutionality defect, since general rules on tax matters must be contained in a supplementary law, pursuant to article 146, III, of the Federal Constitution.

This decision was the subject of an interlocutory appeal, filed under number 2116499-62.2025.8.26.0000, by the lawyer and partner of the firm, Dr. Guilherme Matos Cardoso, which, on September 30, 2025, the 26th Chamber of Private Law of the Court of Justice of São Paulo granted .

According to the vote of the rapporteur, Judge Maria de Lourdes Lopes Gil, “there is no exemption from the obligation provided for by state legislation, but only the possibility of postponing payment until the end of the process.”

The rapporteur highlighted that the absence of unconstitutionality, whether formal or material, has been repeatedly recognized by the Court’s jurisprudence, emphasizing that the rule in question, of a procedural nature, only regulates the moment of the tax’s enforceability, without encroaching on the States’ competence to establish or collect fees .

Thus, the appealed decision was reversed, setting aside the order for the collection of the court fee resulting from the filing of the original enforcement action by the appellant’s lawyer, thereby recognizing the constitutionality of the rule provided for in Article 82, § 3, of the CPC.

See the full decision by clicking here.