Cesar Peres Dulac Müller logo


Date: February 28, 2019
Posted by: CPDMA Team

STJ reduces possible use of IPI credits by the tobacco industry

The Superior Court of Justice (STJ) ruled that the purchase of tobacco from individual producers or wholesalers by the tobacco industry does not generate tax credits. This is because, in this case, the sale is made by those who are not taxpayers of the Industrialized Product Tax (IPI).

The ministers of the 1st Panel analyzed the issue when judging the case related to the ATC Associated Tobacco Company Brasil, which operates in the industrialization and trade of tobacco. The decision was rendered by four votes to one.

The topic is of interest to the sector, which can use such credits to pay off tax debts, and to the Attorney General's Office of the National Treasury (PGFN) — because of the high amounts of IPI collected from the tobacco industry.

In 2005, the ATC requested reimbursement or offsetting of tax credits, for having an IPI credit balance, for the period from January to June of that year. The request was based on the provision of the IPI Regulation of 2002 (Decree No. 4,544 of 2002) on the non-cumulative nature of the tax — which guarantees that the tax is not levied on it at each stage of production until sale to the final consumer.

For the Tax Authorities, however, there would be no credits because they referred to the purchase of raw tobacco, sold by individual rural producers, on which there was previously no IPI levy.

The company took the discussion to the STJ to ask for the reform of a decision by the Federal Regional Court (TRF) of the 4th Region (South). The judgment did not recognize the existence of IPI credits because the tax was not charged upon entry of the product at the wholesale establishment (non-IPI taxpayer). Nor in industrialization by order, when the ordering party purchased raw tobacco from individuals (non-taxpayers as well).

By majority, the ministers denied the ATC's request (Resp 1693760). The trial, which had already started before, was resumed on Tuesday with the vote of Minister Regina Helena Costa.

The minister considered that the company industrially processes raw tobacco and tobacco leaves, buying from producers who are not IPI taxpayers. Therefore, he denied the request.

For Regina, the IPI credit is basic, linked to the principle of non-cumulativeness and not presumed. “Incentives or tax benefits are not presumed. The granting of presumed credit can only be done through a specific law, which does not occur in this case,” he said.

The minister also highlighted that the final product is not exported. This is important for the decision, because, in the context of exports, there could be the option of stimulating the sector through presumed IPI credits that can be offset against other taxes.

The rapporteur, Minister Gurgel de Faria, followed the vote. He was also followed by ministers Sérgio Kukina and Benedito Gonçalves. Minister Napoleão Nunes Maia Filho was defeated.

Source: Beatriz Olivon via Valor Econômico.


Recent posts

Misuse of a trademark by a former partner can be recognized not only as unfair competition, but also as bad faith.

On February 14, the newspaper "Valor Econômico" published an article in which it was pointed out that the São Paulo Court of Justice had recognized unfair competition in the improper use of a trademark by a former partner. The article, however, does not give the number of the case in which it would be possible to analyze more details of the decision, but it does inform that the individuals had signed a [...]

Read more
The first sanctions applied by the National Agency for the Protection of Personal Data (ANPD) were a wake-up call for companies: the LGPD is a serious law and must be complied with.

The General Personal Data Protection Law - Law No. 13,709/18 (LGPD) was published in 2018 and came into force in 2020. This deadline was given to public and private legal entities (processing agents) that collect, store or process the personal data of individuals, in Brazil or abroad, in order to [...]

Read more
Business position on the recent STF decision that ruled that it is constitutional for trade unions to charge assistance contributions

Recently, the Federal Supreme Court (STF) unanimously ruled that unions can collect an assistance contribution, including from non-member employees, in ARE 1.18.459 (Topic 935 of the General Repercussion), as long as the worker is guaranteed the right to object, establishing the following thesis: "it is constitutional to establish, by agreement or [...]

Read more
The new chapter in the legal dispute involving the term "HELLES", registered as a 'trademark'.

Recalling the case... It all started at the beginning of 2019, when the brewery Fassbier gave extrajudicial notice to a series of breweries in Rio Grande do Sul for the alleged misuse of the term HELLES, claiming to have exclusive use of the expression, given that the word was registered as a trademark. Not satisfied with [...]

Read more
Suspension of labor executions against companies in the same economic group

In a recent decision, the STF suspended the processing of labor executions that discuss the inclusion, in the execution phase, of a company that is part of an economic group that did not participate in the knowledge process. In labor proceedings, when the execution phase is reached and the main debtor does not have enough assets to pay the debt, many [...]

Read more
STJ decides that the legal personality of a civil association can be disregarded, but limits liability to the directors

The 3rd Panel of the Superior Court of Justice (STJ) [1] dismissed a special appeal filed by the directors of a civil association, which had its legal personality disregarded in a case involving the improper use of a trademark. The Court, in a judgment drafted by Justice Marco Aurélio Belizze, held that the disregard of [...]

Read more
linkedin Facebook pinterest youtube lol twitter Instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter Instagram