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Date: February 27, 2019
Posted by: CPDMA Team

Taxpayers win in STJ dispute over drawback

The taxpayers won in the 1st Panel of the Superior Court of Justice (STJ) a dispute on drawback. For the ministers, the company that missed the deadline to use the tax benefit of the regime - the suspension of the Import Tax - must only pay interest on late payment and a fine from the 31st day of the default on the commitment to export. The score was three votes to two. With the decision, the topic can be taken to the 1st Section. The 2nd Class has a divergent understanding.

In the suspension drawback regime, no tax is levied on the imported good, as long as it is incorporated into the production process and the final product is exported within one year. If the deadline is not met, the company is obliged to pay the tax within 30 days after this one-year interval.

In the case under trial (REsp 1310141), the company paid the Import Tax after missing the deadline, but filed a lawsuit against the demand for late payment interest and a fine (legal charges). Only accepted monetary correction.

In the lawsuit, the taxpayer claims that the interest and the fine are only due after a period of one year and 30 days. The Attorney General's Office of the National Treasury (PGFN) considers that the interest and the penalty should apply from the moment of importation. The understanding of the body, however, did not prevail in the trial.

The session was resumed with the vote of Minister Sérgio Kukina. He voted for the incidence of late payment interest. But it removed the fine on late payment interest, which was collected within 30 days. The understanding was accompanied by Minister Gurgel de Faria, who had already cast a vote with a small difference. Both, however, were defeated.

The vote of the rapporteur, Minister Napoleão Nunes Maia Filho, prevailed. He ruled out the payment of interest on arrears and a fine in the specific case, as he understood that the initial deadline for the incidence of these charges is the 31st day of the default on the commitment to export.

According to the rapporteur, 30 days are foreseen for the payment of the tax. Therefore, interest and fines should only be charged after this interval. The rapporteur's vote was followed by Minister Regina Helena Costa and Minister Benedito Gonçalves.

Minister Gurgel de Faria said, at the end of the trial, that embargoes of divergence may be presented for the 1st Section to judge the matter. The 2nd Panel understands that interest and fines must be charged from the moment of importation. "Let's go, let's go to the Section", said minister Regina Helena Costa.

Source: Beatriz Olivon via Valor Econômico.

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