The 8th Panel of the Regional Federal Court of the 1st Region (TRF1) unanimously upheld a ruling that exempted TAM Linhas Aéreas from paying the additional 1% of the Social Security Financing Contribution (Cofins), established by Law 12.844/2013, on the import of goods with a “zero rate”. In 2014, a Boeing 767-316ER aircraft, two General Electric CF6-80C2-B6F engines and one V2527-A5 engine were imported.
The Union appealed to the Court, arguing that the requirement for additional payment was due and constitutional, with Cofins-Importation being a condition for nationalization, in order to appear in the application of the principle of exclusive customs protection. Read the full decision.
The rapporteur, federal judge Novély Vilanova, said there is no distinction between exemption and zero rate. For him, the thesis of RE 1,178,310 (which defined that the charge is constitutional) does not apply because the issue in the process is of an infraconstitutional nature of intertemporal or transitory law.
According to the judge, Law 12.844/2013, which instituted the tax, is a “general rule” and article 12 of the rule is applied only to increase the rates provided for in Law 10.865/2004. “It made no reference to the sectors benefiting from a 'zero rate', including the import of aircraft, parts and pieces provided for in § 12, items VI and VII of that article (special rule). It is incomprehensible to add something that did not exist (the zero rate)!”
Provided for in a specific law, the benefit of the “zero rate” could only be excluded by another equally specific law or one that revoked the exemption, according to the Law of Introduction to the Rules of Brazilian Law (LINDB).
As the matter has not been settled in the Superior Court of Justice (STJ), Vilanova concluded that it should be interpreted literally, with the jurisprudence of the TRF1 prevailing.
The case number is 0087219-44.2014.4.01.3800.