The 3rd Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) denied the use of PIS and Cofins credits on expenses with freight of finished products between establishments of the same company. The decision was made by a casting vote.
The winning position was that of counselor Rosaldo Trevisan, who defended the application of REsp 1,221,170 of the Superior Court of Justice (STJ). The Court defined that everything that is essential for the economic activity should be considered an input for the purposes of crediting PIS and Cofins.
According to the counselor, the STJ's understanding against crediting is not in the thesis, but in the repetitive vote, which provides for restrictions on credit in cases such as the one discussed. "The repetitive decided on the impossibility of credit for the transfer of finished products between establishments. This is my position, which has already been expressed, and it is a settled case in the STJ", he pointed out.
For the rapporteur, counselor Valcir Gassen, representing the taxpayers, freight between establishments of the same company is included in the product sales process and, therefore, is entitled to PIS and Cofins credits. The same understanding is shared by counselor Tatiana Midori Migiyama, who cites item 9 of article 3 of Law 10.833/03, which provides for “freight in the sales transaction” for the use of credit.
“When [the law] mentions the term 'operation', operation for me is a broader term than sales freight, and that is why I consider freight between establishments of the same legal entity”, said the counselor.
The decision by casting vote did not mean a change in understanding on the subject because while the pro-taxpayer tiebreaker was in effect, the discussion fell within the exceptions provided for in Ordinance 260/20, of the then Ministry of Economy. The regulation provided for the maintenance of the casting vote in cases where the requirement for tax credit is not discussed, such as requests for compensation.
At the end of last year, the casting vote had already been applied in decisions on similar topics in rulings 9303-013.583, from Grande Moinho Cearense, and 9303-013.644, from Vale Grande Indústria e Comércio. At that time, as in the session this Wednesday, the tie was due to a division between councilors representing taxpayers and the Treasury.
In the most recent trial, the panel allowed the taxpayer to file a voluntary complaint, which allows the payment of overdue taxes with the avoidance of penalties and fines, by submitting the offset statement. The majority decision was to equate the payment of the tax credit with the submission of the offset statement.
The composition of the current panel is different from last year's, when the panel decided differently, understanding that compensation was a different way of extinguishing tax credits and that the voluntary denunciation institute would require an actual payment. The ruling is 9303-013.148 from M Dias Branco Indústria e Comércio de Alimentos.
The proceedings involving SLC Alimentos are under number 11080.904333/2013-14, 11080.904334/2013-51, 11080.904335/2013-03, 11080.904336/2013-40, 11080.904337/2013-94, 11080.904338/2013-39, 11080.904339/2013-83 and 11080.904340/2013-16.