The 1st Section of the Superior Court of Justice (STJ) recently ended a debate that had lasted for more than 20 years in the courts. In judging the embargoes of divergence in the Special Appeal (EREsp) 1.213.143/RS, the 1st Section recognized the right of the taxpayer to keep the IPI credit, even in the face of outflows of products not subject to the tax.

The IPI is a tax subject to the non-cumulative regime and, pursuant to Article 153 of the Federal Constitution, "will be non-cumulative, offsetting what is due in each transaction with the amount charged in the previous ones".

In the case of IPI, the non-cumulative is unrestricted, unlike that established for the ICMS, in which there is a need to reverse the credit in non-taxed outflows.

Also, Article 150, paragraph 6, of the CF/88 allows that a specific law grants  the right of credit in other hypotheses.[1]

Non-cumulative as a technique includes distinct systematics. This, moreover, is the reason for different constitutional treatments to deal with the non-cumulative of IPI and  ICMS.

In this context, and based on the prerogative set out in Article 150, paragraph 6, of the CF/88, the National Congress issued Law 9.779/99 to make explicit the right of taxpayers to maintain the IPI credit, including in case of outflows of final products not subject to the tax:

"Art. 11. The creditor balance of the Tax on Industrialized Products – IPI, accumulated in each calendar quarter, resulting from the acquisition of raw material, intermediate product and packaging material, applied in industrialization, including a product exempt ed or taxed at the zero rate, which the taxpayer cannot compensate with the IPI due on the outflow of other products, may be used in accordance with the provisions of the arts. 73 and 74 of Law No. 9,430 of December 27, 1996, observed standards issued by the Federal Revenue Office of the Ministry of Finance."

With the publication of Law 9.779/99, the Federal Revenue of the 7th Region came to recognize the possibility of the taxpayer maintaining the IPI credit from the acquisition of ipi-taxed goods applied to the final product not subject to the tax:

"IMMUNE END PRODUCT. CREDITING. POSSIBILITY.

According to the dominant administrative view, the provisions of Article 11 of Law 9.779/99 generally defers to the industrial of immune products the right of credit to the products and their use to, successively, compensate with IPI perhaps due, compensate with another tax or obtain reimbursement in kind, obeying the relevant formalities. Legal Provisions: CF, art. 150, VI, "d", art. 153, §3, II and III, art. 155, §3; Law 9.779/99, art. 11; IN 33/99, AND COSIT 00/17."[2]

However, further, the IRS revised its position by the edition of the Interpretative Declaratory Act (ADI) 05/06 and began to apply it. As provided in this ADI, it would not be allowed to maintain the IPI credit when the materials were applied in a final product with NT rating (not taxed).

Under the framework of Brazilian Taxpayers Council (Carf), on some occasions it was recognized the right to maintain the IPI credit, including in case of outflows not subject to the tax:

"IPI. COMPENSATION BAD CREDIT, INTERMEDIATE PRODUCT AND PACKAGING MATERIAL. IMMUNE PRODUCT. The products listed in TIPI as non-taxable under constitutional immunity and which are not excluded from the concept of industrialization of Art. 3 of the RIPI/98 shall enjoy the right to reimbursement of claims related to the materials used in the production process, as available in Article 11 of Law No. 9,779/99. Appeal provided in part."[3]

But after the fixing of the theme in Stare decisis  Carf 20, the right to maintain IPI credit on outflows not subject to the tax had been recognized only in case of exportation:

"There is no right to IPI credits acquisitions of insums applied in the manufacture of products classified in TIPI as NT."[4]

As the Supreme Court (STF) ruled that the discussion on the possibility of maintaining the IPI credit provided for in Law 9.779/99 would be of an infraconstitutional order,[5] the Superior Court of Justice had the final word on the subject.

The leading case was the EREsp 1.213.143/RS, reported by Justice Assusete Magalhães, who voted not to recognize the right to maintain the IPI credit in outflows not subject to the tax. Justice Regina Helena Costa asked for a view and voted to recognize the right to maintain the IPI credit, including in the outflows not subject to the tax.

After the debate on the subject between the Justice of the 1st Section, it was established the understanding that it is legitimate to maintain the IPI credit, including in outflows of final product not subject to the tax:

"CIVIL AND TAX PROCEDURE. DIVERGENCE EMBARGOES ON SPECIAL APPEAL. 2015 CIVIL PROCEDURE CODE. APPLICABILITY. TAX ON INDUSTRIALIZED PRODUCTS - IPI. GRANTING CREDIT THROUGH ART. 11 OF LAW No. 9,779/1999. AUTONOMOUS CREDITING. UNTYING OF THE NON-CUMULATION RULE - DISTINGUISHING. USE OF THE IPI CREDITOR BALANCE IN THE UNFEASIBILITY OF COMPENSATION WITH THE MENTIONED TAX INCIDENT ON EXIT. HYPOTHESIS OF UNTAXED PRODUCT. POSSIBILITY.

(...)

III – Law No. 9,779/1999 established the use of IPI credits as an autonomous tax benefit, since it does not translate merely the explicitness of the rule of non-cumulation.

IV – Because it is the use of IPI credits as an autonomous benefit, directly granted by law for the dishonored exit, the discussion returned by the Embargoes of Divergence distances itself from the core of the controversy involving the non-cumulation of this tax - need for distinguishing -, even taking care of eminently infraconstitutional matters.

V – Art. 11 of Law No. 9,779/1999 confers ipi credit when it is impossible for the taxpayer to compensate for this amount with the aforementioned tax levied on the outflow of other products. In the impossibility of using the sum resulting from the onerated entry, the pointed article opportunistizes the consolidated way of the arts. 73 and 74 of Law No. 9,430/1996. Authorized, therefore, the use of the value released in the tax writing, precisely with the output "of other products". It should be reiterated that other products in this context may be exempted, subject to the zero or untaxed rate.

VI – Unacceptable to restrict, by an infralegal act, the tax benefit granted to the productive sector, especially when the three situations – exempt, subject to the zero rate and not taxed – are equivalent as to the practical result outlined by the Benefit Law.

VII – Therefore, it finds legal shelter to take advantage of the ipi balance arising from purchases of raw materials, intermediate products and taxed packaging materials, in the outflows of products not taxed in the period after the validity of Art. 11 of Law No. 9,779/1999.

(...)

IX - Embargoes of Divergence improvised."[6]

In order to standardize the jurisprudence on the right to maintain IPI credit, including outflows not subject to the tax, Stare decisis Carf 20 became obsolete. For this reason, and as stated in Article 19 of Law 10,522/02,[7] Carf's judges should realign their jurisprudence on the subject and proceed to follow the understanding signed by the Superior Court of Justice.

 

[1]"Art. 150. Without prejudice to other guarantees guaranteed to the taxpayer, the Union, the States, the Federal District and the Municipalities are delimited:

(...)

  • 6 - Any subsidy or exemption, reduction of calculation basis, granting of presumed credit, amnesty or remission, relating to taxes, fees or contributions, may only be granted by specific law, federal, state or municipal, which regulates exclusively the matters listed above or the corresponding tax or contribution, without prejudice to the provisions of Article 155, § 2, XII, g."

[2] SRRF/7ª RF/DISIT 248/2000 Consultation Solution

[3] Judgment 202-16.984, rapporteur-designate: Maria Cristina Roza da Costa, DOU of 21/08/2007

[4] Summation Carf 20. Binding, according to Ordinance MF 277, of 07/06/2018, DOU of 06/08/2018

[5] "ACCORDING TO REGIMENTAL PERFORMANCE IN EXTRAORDINARY APPEAL. TAX LAW. TAX ON INDUSTRIALIZED PRODUCTS - IPI. PRINCIPLE OF NON-CUMULATION. PRODUCTS WITH UNTAXED OUTPUTS. RETRACTION JUDGMENT. 1. The legal regime of the IPI was completed with Art. 11 of Law 9.779/1999, so that the right to credit exempt, untaxed or subject to the zero rate is only possible with the advent of said legal law. Previous. 2. Although they have different legal natures, there is no differentiation in situations where products are subject to exempt, untaxed or reduced exits at zero rate, because the legal consequence is the same within the production chain, due to the tax exemption of the final product. (...) 4. The verification of the scope of the tax benefit established by Article 11 of Law 9.779/1999 is limited to the infraconstitutional scope. Previous. 5. Regimental grievance to which it is dismissed." (STF, 2nd Class, AgR in The AgR at RE 379.843, DJU of 27/03/2017)"

[6] DJU of 01/02/2022

[7] "Art. 19. The Attorney General's Office of the National Treasury is exempt from contesting, offering counter-reasons and appeals, and is authorized to give up appeals already brought, provided that there is no other relevant basis, in the event that the action or the judicial or administrative decision deals with:

(...)

VI – the meth decided by the Supreme Federal Court, in constitutional matters, or by the Superior Court of Justice, the Superior Labor Court, the Superior Electoral Court or the National Class of Standardization of Jurisprudence, within the scope of its powers, when:

(a) is defined as a general repercussion or repetitive resource; or

b) there is no feasibility of reversal of the thesis signed in a sense unfavorable to the National Treasury, according to criteria defined in the act of the Attorney General of the National Treasury;"