The ministers of the 2nd Panel of the Superior Court of Justice (STJ) unanimously granted the appeal of the National Treasury (REsp 2020209/AM) to authorize the collection of PIS-Import and Cofins-Import on purchases of products from signatory countries of the General Agreement on Tariffs and Trade (GATT), for use and consumption within the Manaus Free Trade Zone.
The TRF1 recognized the taxpayer's right not to be subject to the charge, given that the Manaus Free Trade Zone, for tax purposes, is equivalent to a foreign country. Therefore, the sale of products to this area would be equivalent to exports and should not be taxed, according to article 149, second paragraph, item I, of the Constitution. According to this provision, social contributions and intervention in the economic domain are not levied on revenues resulting from exports.
The National Treasury argued, however, that the specific case does not constitute an export, but rather an import. This is because the taxpayer promotes the entry of finished foreign goods into the national territory, thus attracting the incidence of contributions.
According to National Treasury Attorney Amanda Geracy, the law authorizes the equivalence of a transaction to an export when there is the entry of goods of national origin for consumption or industrialization in the Manaus Free Trade Zone or the re-exportation of these goods to other countries. In these cases, the transactions could be exempt from PIS and Cofins levied on revenue or turnover. These contributions are provided for in article 195, item I, item “b”, of the Constitution.
In this specific case, he states, what occurred was the importation of finished goods from other countries. In this case, Article 195, paragraph IV, of the Constitution should be applied. This provision provides for the collection of contributions “from the importer of goods or services from abroad, or from anyone who is considered equivalent by law.”
Finally, even in the case of imports, the attorney explains that the Treasury recognizes the exemption from the Tax on Industrialized Products (IPI) and the Import Tax (II), but not from PIS-Importation and Cofins-Importation. This exemption is provided for in article 3 of Decree-Law 288/67.
On the other hand, an exception that would allow exemption from PIS-Importation and Cofins-Importation would be the import of raw materials, inputs and capital goods, in accordance with article 14, paragraph one, of Law 10.865/04. In the case under analysis, however, the import was of finished products.
“The STJ understood that it is not possible to give an extensive extension of the IPI and II exemption provided for in article 3 of Decree-Law 288/67 to PIS-Importation and Cofins-Importation”, said Amanda.
For the prosecutor, a decision to the contrary would go against the objective of promoting industrialization in the Manaus Free Trade Zone, since it would encourage companies in that area to import.
“What would be the practical consequences if the ruling were upheld? All finished products purchased by the Free Trade Zone would be exempt from taxes, and this interpretation would go against fostering a development hub. The Free Trade Zone could become a mere hub for the resale of finished foreign goods from GATTI countries, including China,” he said.