ICMS collection: issue has a major impact on automakers, electronics, soft drinks and cosmetics industries — Photo: Leonardo Rodrigues/Valor

The topic was analyzed in the so-called “thematic session”, responsible for unifying the understanding of the administrative court. The thesis established will now be applied to all other cases on the subject brought to the TIT.

The winning group understood that the use of tax benefit credits not authorized by the National Council for Financial Policy (Confaz) cannot be permitted, as provided for in articles 1 and 8 of Complementary Law No. 24, of 1975.

For the judges, it would not be possible to apply article 15 of the same rule to the case, as the taxpayers argue. The provision expressly states that the measure does not apply to industries installed or that will be established in the Manaus Free Trade Zone. The judges took into account that this determination predates the 1988 Federal Constitution and, later, new rules came against the ICMS tax war, which prohibit the granting of credits not allowed by Confaz.

The economic impact of the discussion was also taken into consideration. Judge Rodrigo Pansanato Osada highlighted, in his vote, that, according to information from the São Paulo State Treasury, around R$ 9 billion in credits would be at stake.

Some judges also considered that the issue judged yesterday would be linked to the understanding of the Superior Chamber, adopted last year, regarding the legality of the annulment (disallowance) of credits on tax benefits not approved by Confaz — a discussion that did not include the Free Zone.

The current that was defeated maintained the application of article 15 of Complementary Law nº 24, of 1975, which brings the exception to the Manaus Free Trade Zone. Judge Juliano Di Pietro, for example, stated that the article is fully compatible with the Constitution and does not have any time limit.

He added that the constitutional spirit is to encourage the Amazon region. And this has already been confirmed by the Federal Supreme Court (STF), with general repercussion, in April 2019, when dealing with the right to IPI credits on the entry of inputs, raw materials and packaging material purchased in the Manaus Free Zone under the exemption regime (RE 592891).

However, the current favorable to the taxpayers' thesis was defeated. The issue should mainly affect vehicle manufacturers, electronics, soft drinks and cosmetics industries. With the decision, according to Thiago Amaral, partner at Demarest Advogados, “what would be the advantage today of buying in the Manaus Free Trade Zone?”

In addition to the millions of reais involved in the infraction notices applied to taxpayers, according to lawyers, companies will now have the cost of taking the discussion to the Judiciary, where they will need to present guarantees. However, they say, the courts tend to be more favorable to companies in this discussion.

For Maurício Barros, from Demarest Advogados, both the legislator and the Supreme Court have adopted a line of maximum protection for the Free Zone. So much so that after the promulgation of the Constitution, he adds, two constitutional amendments were published (nº 42, of 2003, and nº 83, of 2014), which keep it in force until 2073.

According to tax lawyer Mauricio de Carvalho Silveira Bueno, partner at HRSA Sociedade de Advogados, the issue should now follow the same path as the discussion on IPI credits. After successive defeats by taxpayers at the Administrative Council of Tax Appeals (Carf), the STF expressed its opinion on the distinction of the Free Zone in relation to other States.

The TIT judgment, says the lawyer, treated article 15 of Complementary Law No. 24 “almost as a dead letter, even though the Supreme Court did not declare the provision unconstitutional”. He recalls that article 28 of Law No. 13,457/2009, of São Paulo, which deals with the administrative tax process, is clear in saying that, in judgment, it is prohibited to reject the application of the law on the grounds of unconstitutionality, except when the STF a has proclaimed. “Now we will have a flood of million-dollar lawsuits in the São Paulo Judiciary”, he says.

Despite there being a favorable precedent on IPI in the STF, lawyer Paulo Vieira da Rocha, from VRMA Advogados, warns that there has been a certain flexibility in recent cases judged by ministers. Last month, he says, the Virtual Plenum declared constitutional incentives granted by Laws No. 8,387, of 1991, and No. 10,167, of 2001, to the IT sector, regardless of whether they are located in the Free Zone (ADI 2399). In another judgment, from August 2020, he adds, the ministers dealt with the incidence of PIS and Cofins on the resale of vehicles and auto parts from dealerships located in the region and “there seems to have been some flexibility, at least according to one of the two interpretations that can be drawn of that difficult ruling” (ADI 4254).

In a note, the Secretariat of Finance and Planning of the State of São Paulo states that the decision of the Superior Chamber of the Court of Taxes and Fees affects 47 administrative litigation cases in São Paulo, whose debt originally required by the assessments in infraction notices exceeds R$ 2 billion.

Five cases were discussed and judged, according to the note. “The tax charges remained maintained, having prevailed, by a majority of votes (9 x 7), the understanding of the legitimacy of the tax requirement in infraction notices, considering the credits made by São Paulo purchasers to be undue due to the absence of a Confaz agreement in the granting of incentives to the respective senders in Manaus”, says Fazenda São Paulo.

By Adriana Aguiar, Valor — São Paulo

24/03/2022

Source: Valor Econômico