By seven votes to one, the 3rd Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) allowed the use of PIS/Cofins credits on packaging material. The prevailing understanding was that the packaging was not merely for transportation, as it protected the plastic resins, a raw material produced by the taxpayer, from dirt.
The case reached the Superior Court after the lower court allowed the crediting of costs for packaging material (big bags, clamps, films and pallets) and the National Treasury appealed. For the ordinary court, it was proven that the material falls within the concept of input for purposes of PIS/Cofins crediting, as defined by the Superior Court of Justice in the judgment of special appeal (REsp) 1,221,170. At the time, the Superior Court of Justice (STJ) established that the concept is subordinate to the criteria of essentiality and relevance of the good or service in the production process.
The taxpayer's lawyer, Fernanda Rocha Taboada, stated that the packaging is part of the taxpayer's production chain, as its purpose is to promote physical integrity and prevent contamination of the final product. According to the lawyer, the company, which was incorporated by Braskem, produces plastic resin, a raw material for the plastics industry. When heated, the resin can be molded into various shapes.
The lawyer stated that plastic resins are transported in the form of small balls in bags (big bags) that have holes. “There is a whole concern and need required by the market and technical specifications in order to seal this product so that there is no dirt. They are packaged, initially, in big bags. These bags are wrapped in plastic film, placed on pallets, which are packaged and everything becomes a large volume. The pallets are not reused”, said the defender. Fernanda Taboada also highlighted that the panel ruled in favor of the same company in 14 other cases on the subject judged in December 2022.
The rapporteur, counselor Erika Costa Camargos Autran, dismissed the Treasury's appeal. According to her, the absence of packaging material would make the activity unfeasible. In addition, she highlighted that the panel ruled on cases in favor of the same taxpayer in December 2022.
Councilor Oswaldo Gonçalves de Castro Neto dissented. The judge stated that he did not see pallets as essential or relevant to the taxpayer's activity. For him, big bags would be enough to ensure the integrity of the plastic resins. However, the other councilors agreed with the rapporteur's vote.
The process is under number 13502.900954/2010-95.