Circular SI/055/13

PIS AND COFINS IN IMPORTS - STF UNCONSTITUTIONAL JUDGE
 
The Plenum of the Supreme Court (STF) decided on Wednesday (20/03) that it is unconstitutional for the inclusion of ICMS and PIS / COFINS Pasep and the calculation basis of these same social contributions levied on import of goods and services. The rule is contained in the second part of clause I of Article 7 of Law 10.865/2004.
 
The decision came in the judgment of Extraordinary Appeal (RE) 559937, which resumed today with the vote-view minister Dias Toffoli. Both he and the other members of the Court followed the rapporteur's vote, Justice Ellen Gracie (retired) and thus the decision was made unanimously.

In RE, the Union questioned the judgment of the Federal Court of the 4th Region (TRF-4) that found unconstitutional the rule as to the basis of calculation of these contributions in the operations of imports of goods and services. At the time of the vote reporting, in October 2010, she considered correct at the TRF-4 decision that favored the company Gaucho Vernicitec Ltda. In his opinion, the minister stressed that the standard overstepped the limits laid down in Article 149, paragraph 2, section III, letter 'a', of the Federal Constitution, as defined by Constitutional Amendment 33/2001, which provides for the "customs value" as the basis for calculating social security contributions.
 
The Union came to argue that the inclusion of taxes in the calculation basis of social contributions on imports have been adopted in order to establish equality between the companies internally subject to payment of social security contributions and those subject to its collection on imported goods and services. But the minister-rapporteur departed this argument by stating that situations are different. For her, claiming to give equal treatment would disregard the context of each of them, for the customs value of the imported product already includes shipping, additional freight for the renewal of Shipping, Insurance, Financial Operations Tax (IOF) on foreign exchange and other charges . It is, therefore, a burden which is not subject to national producers.

Votes

At the meeting, the minister accompanied Dias Toffoli full vote of the rapporteur. He said the tax bases mentioned in Article 149 of the Constitution, can not be taken as starting points because to grant the tax powers, the legislature has outlined its limits.

"In simple reading of the rules contained in art. 7 of Law No. 10.865/04 already demonstrates that the basis for calculating social security contributions on the import of goods and services went beyond the quantitative aspect of incidence defined by the Federal Constitution, the customs value addition to the amount of taxes, including the own contributions, "he said.

Then the minister theoretical Zavascki voted in the same direction and the rapporteur noted that the equality advocated by the Union, if any, should be addressed differently, eg, by reducing the basis for calculation of internal operations or using different rates. "What is not, under the pretext of the principle of equality, extend a tax basis that the Constitution does not provide," he said.

Also followed the rapporteur ministers Luiz Fux, Carmen Lucia, Ricardo Lewandowski, Gilmar Mendes, Marco Aurélio, Celso de Mello and the court's president, Joaquim Barbosa.
 
Regarding the alleged equality, minister Celso de Mello said that "there would be other ways to accomplish the same goal and not by the undue expansion of the economic element of the tax in the case of his own calculation basis."
 
modulation
On behalf of the Union, the representative of the National Treasury pleaded, in the gallery of the House, the modulation of the effects of this trial in view of the amounts involved in the cause, he said, are around £ 34 billion. However, the Board decided that any modulation can only occur on the basis of evaluation of concrete data on values and this should be done at the time of analysis of possible motion for clarification.

The executive secretary of the Finance Ministry, Nelson Barbosa said on Tuesday he would ask the modulation of the decision on PIS / COFINS the Federal Supreme Court (STF), which will cost the Union, but will benefit importers, and that she is worth only from the Supreme definition.
 
On Wednesday, the ministers of the Supreme understood that it is unconstitutional to include the Tax on Circulation of Goods and Services (ICMS) at the base of the PIS / COFINS Pasep and import operations.

"The decision is not published yet. Modulation Let's ask the decision and, preferably, it is only forward," he said after a meeting of the Economic Affairs Committee (EAC) of the Senate. The request will be made for the impact to be softer Union over time. "We want to know from when is applied, c omo be paid, reimbursed, but it is very technical discussion," he said.
 
According to Barbosa, the theme will be the responsibility of the Attorney General of the Ministry of Finance (PGFN). "We are analyzing the impact of the measures we take to absorb it. Absorb View as fiscally, we will place an order modulation so that the impact is softer in time", he said.