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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.

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