The ministers of the Federal Supreme Court (STF), by majority vote, upheld state laws from Minas Gerais, Amapá and Pará, which create mining inspection fees. The understandings of rapporteurs Edson Fachin, Luiz Fux and Nunes Marques prevailed that the fees are legitimate and the form of collection of the tax – per ton of ore – is not disproportionate to the costs of the state operation and the capacity of taxpayers.
The joint trial of Direct Actions of Unconstitutionality (ADI) 4,785, 4,786 and 4,787 began in the last session of last semester and returned this Monday (1/8) at the opening of the second semester of the STF.
The National Confederation of Industry (CNI), the author of the lawsuit, was interested in analyzing the lawsuits. The CNI argues that the constitutionality of state mining taxes will lead to a proliferation of such taxes in Brazilian states and municipalities, especially given the drop in revenue resulting from changes to the ICMS tax on fuel, electricity and telecommunications. On the other hand, environmental organizations and the states argue that monitoring is necessary, that the tax is proportional and that accidents such as those in Mariana and Brumadinho can be avoided.
The CNI aimed to eliminate the fees because it understood that they had the characteristics of a tax. In other words, to be considered a fee, the tax must be specific and divisible among taxpayers. Furthermore, the amount should be sufficient to cover the state action that justified the creation of the fee, in this case, the inspection of mining activities in the states.
However, according to CNI lawyers, the tax calculation basis is per ton of ore and the revenue is disproportionately higher than the costs of the inspection that justified the creation of the tax. Therefore, the tax would have a revenue-generating and not extra-fiscal nature, that is, the law does not create a tax, but rather a tax disguised as a tax.
According to the CNI, in the case of Minas Gerais, the tax alone corresponds to almost all the expenses of all state agencies involved in inspections, and mining-related activities account for less than R$81,400 of inspections. In 2019, according to information from the entity, the tax brought R$1,500,000 to the state's coffers. Furthermore, the CNI also argues that the power to legislate on mineral resources lies exclusively with the Union, and not with the states.
The states of Minas Gerais, Pará and Amapá and the Legislative Assemblies of the states defended the constitutionality of the tax. For them, article 23, XI, of the Federal Constitution states that it is a common competence of the Union, the states, the Federal District and the municipalities to register, monitor and supervise the concessions of research and exploration rights for water and mineral resources in their territories.
Furthermore, they reported that the amounts collected from the fee are in line with the expenses arising from the registration and inspection of research, mining, exploration and exploitation of mineral resources, taking into account the amount of new activities to be carried out. They also highlighted the proportionality of the basis for calculating the fee, since “the greater the quantity of mineral extracted, the higher the demand for inspection activities”.
Votes
In the session held on Monday (1/8), Fachin, rapporteur of ADI 4785, on the mining tax, maintained the vote cast in a virtual environment, in favor of the mining tax, the states' authority to create and collect the tax and the proportionality of the method of calculating the tax. Thus, because it began in a virtual environment, this trial maintained the votes of the retired ministers. Fachin was accompanied by the following ministers: Celso de Mello, Cármen Lúcia, Alexandre de Moraes, Ricardo Lewandowski, Dias Toffoli, Rosa Weber and Luiz Fux.
Ministers Marco Aurélio, Roberto Barroso and Gilmar Mendes disagreed with the rapporteur. Mendes and Barroso agreed that the fee created by the Minas Gerais law exceeds the costs of state inspection activities and, therefore, would be unconstitutional.
In the case of the Amapá and Pará taxes (ADIs 4786 and 4787), the vote started from scratch. Rapporteurs Nunes Marques and Luiz Fux also ruled that the taxes were valid and that the industrial entity's actions were unfounded. Justice André Mendonça completely disagreed, saying the taxes were unconstitutional. Barroso and Gilmar Mendes partially disagreed because they argue that states can create taxes, as long as they are proportional to the activity carried out by the state. However, in the cases under analysis, this proportionality does not exist, therefore, there is material unconstitutionality.
Thus, the rapporteurs Nunes Marques and Fux were accompanied by ministers Edson Fachin, Cármen Lúcia, Alexandre de Moraes, Ricardo Lewandowski and Rosa Weber. Dias Toffoli did not participate in this trial.
Source: https://www.jota.info/tributos-e-empresas/tributario/stf-valida-taxas-de-fiscalizacao-de-mineracao-cobrada-por-estados-brasileiros-01082022