FEDERAL REGIONAL COURT EXCLUDES “IPI” FOR WHOLESALE ESTABLISHMENTS
The 7th Panel of the Federal Regional Court of the First Region (TRF-1) recently judged two appeals related to the levy of Tax on Manufactured Products (IPI) charged from distributors of hygiene, perfumery and cosmetics products acquired from a company of the same group.
In these situations, Decree 8,393/2015 considers that for some products and economic sectors, the corporate relationship between an industrial establishment and a distributor equates this latter establishment to an industrial branch, thus making them IPI taxpayers upon their sales.
However, as there is no legal basis for such equivalence, but only a provision in the regulation, the Court decided that the resale of such products between companies of the same group does not allow the Tax Authorities to create a legal fiction and charge additional IPI upon these transactions.
The National Treasury may still appeal against those decisions.
SUPREME COURT SUSPENDS DECISIONS ON NEW RATES OF PIS/COFINS ON FINANCIAL REVENUES
Justice Ricardo Lewandowski of the Supreme Federal Court (STF) ordered the suspension of all judicial decisions that have suspended the application of Decree No. 11,374/2023, countrywide.
At the end of 2022, Decree No. 11,322/2022 decreased the rates of Social Contributions on financial revenues (PIS and COFINS), from 0.65% to 0.33% and from 4.0% to 2.0% respectively. The tax reduction should be observed by taxpayers already on the first day of 2023.
However, on January 2, 2023, Decree No. 11,374/2023 revoked Decree No. 11,322/2022, reestablishing the previous rates.
The taxpayers, however, point out that such new increase should respect the constitutional principle of “Anteriority”, according to which social contributions can only be charged or increased after 90 days of the publication of the corresponding law creating or increasing it.
There was a wide judicialization of the subject, and several preliminary injunctions were issued by federal judges and Federal Regional Courts throughout the country suspending the enforceability of contributions for the mentioned period.
The decision of Minister Lewandowski was rendered in the Declaratory Action of Constitutionality (ADC) n. 84 and suspends the effects of all the preliminary injunctions on the subject until the final trial of the ADC, which has no date yet.
STF VALIDATES STATUTE OF LIMITATION RULES IN TAX FORECLOSURES
The Supreme Federal Court (STF) declared the constitutionality of the legal provision that regulates the statute of limitation in tax enforcement procedures. The decision has binding effects.
Section 40 of the Tax Enforcements Law (n. 6,830/1980) provides that the judge must suspend the tax foreclosure when the taxpayer is not found or when no assets are found for seizure.
After one year of suspension, if the situation remains the same, the case is filed for a period of 5 years. At the end of that period, if the taxpayer or property is not located, the judge may apply the statute of limitation and extinguish the lawsuit.
The Federal Government claimed that the article would be unconstitutional because it would deal with general tax rules, which should be disciplined exclusively by complementary law.
However, the Justices of the Supreme Court understood that the Tax Enforcements Law, which is an ordinary law, only reproduced the statute of limitations provisions already established in Article 174 of the National Tax Code (which has status of complementary law), ruling out the argument of the Federal Government.
JUDGE SUSPENDS EFFECTS OF ORDINANCE THAT REDUCED SECTORS BENEFITED BY THE PERSE PROGRAM
Second-level Judge Monica Nobre of the Federal Regional Court of the Third Region (TRF-3) rendered a decision to suspend the effects of Ordinance 11.266/2022 issued by the Ministry of Economy, which reduced the number of sectors entitled to the zero rates benefit provided by the Emergency Program for the Resumption of the Events Sector (PERSE), for companies associated with the Brazilian Association of Corporate and Social Events (Abrafesta), who filed the lawsuit.
The Ordinance excluded 50 sectors from the benefit of zero rate of Income Taxes (IRPJ and CSLL) and Social Contributions (PIS and COFINS), established by Law No. 14,148/2021, which created the PERSE.
The judge rendered the preliminary injunction because she considered that, although the Federal Government has the prerogative to create or raise taxes via provisional measure, it cannot revoke an exemption granted “for a determined period and under certain conditions”, in accordance with article 178 of the National Tax Code.
According to the decision, the exclusion of activities from PERSE “violated the normative expectation created by the Public Administration itself, contrary to legal certainty, the good faith of the taxpayer, the fair conduct of the Public Administration, the protection of legitimate expectations and acquired rights”.
The case still awaits analysis of merits, as this decision was given in an interlocutory appeal.
SUPREME COURT CONFIRMS PRELIMINARY INJUNCTION TO MAINTAIN TUST/TUSD IN THE ICMS BASIS ON ELECTRICITY
The Supreme Court formed a majority of votes to confirm a preliminary injunction issued in the Direct Action of Unconstitutionality (ADI) 7195 to suspend the effects of the article of complementary law (LC) 194/22 that provided for the exclusion of TUST and TUSD (regulatory tariffs charged from electricity companies) from the ICMS (State VAT) basis on electricity.
With the decision, issued by Justice Luiz Fux, the States are allowed to include the tariffs, applicable to the transmission and distribution of electricity, in the calculation basis of the ICMS until the Supreme Court concludes the judgment of the case.
The Reporting Justice understood that it is possible that the Federal Government has overstepped the tax competence of the States by editing complementary law to dispose of the basis for calculating the ICMS, which is a State Tax.
This decision, however, is preliminary, which means that it is a preventive measure to avoid harm to the States, while the merit of the action is not judged by the Supreme Court (which can even dismiss the case).
For further information, please contact:
Henrique Lopes
Victor Polizelli
Álvaro Lucasechi
José Flávio Pacheco
Juliana Nunes
Luís Flávio Neto
Felipe Omori
