On June 5, the virtual plenary of the Federal Supreme Court (STF) began to decide on the process involving the IPI tax on the resale of imported products. Justice Marco Aurélio, rapporteur of the case, voted for the unconstitutionality of the incidence of IPI on the departure of the importing establishment for marketing in the domestic market.
"Before the table, I prove the extraordinary to confer to articles 46, item II, and 51, item II and sole paragraph, of the National Tax Code interpretation in accordance with the Federal Constitution, declaring the unconstitutionality of the incidence of IPI on the departure of the importing establishment of goods for resale in the domestic market, considering the absence of new processing in the industrial field. Fixed as thesis: "The Tax on Industrialized Products - IPI is not levied on the commercialization, considered imported product, which is not preceded by industrial activity".
The trial is scheduled to close on June 15. This is Extraordinary Appeal No. 946.648 from Santa Catarina.
The extraordinary appeal involves discussion about the violation of the principle of isonomy (art. 150, II, of the FC) in view of the fact that there is currently a double incidence of IPI in import operations for resale, at the time of customs clearance and again at its exit for marketing in the domestic market.
The most important argument of the appeal is that according to the STF "the taxable event is not the industrialization itself, but the legal business involving the result of a productive process.
The national industrial sectors have been demonstrating strongly to maintain the double taxation of IPI for importers, because they understand that they will be harmed if the taxation of importers is reduced.
The Federal Union, which may have a considerable financial impact with the decision, asked for the case to be removed from the list of trials but the rapporteur, Minister Marco Aurélio, rejected the request.
Our understanding is in accordance with the Minister's decision that IPI on the resale of imported products is bi-tribution and unconstitutional. The favorable decision of the STF would bring an important reduction of costs in the complex Brazilian import process, also allowing many importers to be successful in the processes of recovery of amounts paid in excess in the last 5 years.
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