The benefit of the suspension of tax on industrialized products (IPI), provided for in article 5 of Law 9,826/1999 and in article 29 of Law 10,637/2002, cannot be extended to establishments considered to be industrial.
With this understanding, the 2nd Panel of the Superior Court of Justice denied the special appeal filed by a company that supplies industrial equipment, against a normative instruction from the Federal Revenue Service that prevented it from adhering to the IPI suspension regime.
The company is considered to be equivalent to an industrial company. It imports components for catalytic converters installed in the exhaust systems of motor vehicles, which it sells on the domestic market to exhaust system manufacturers and vehicle assemblers.
In this condition, the tax benefit was vetoed by express provision of article 23 of the then current Normative Instruction 296/2003, of the Federal Revenue Service.
To the STJ, he stated that the ban is an affront to the General Agreement on Tariffs and Trade (GATT) because it prevents the import of a finished product and passing it on to customers with the same benefit to which it would be entitled if the purchase were made on the domestic market.
Rapporteur, Minister Mauro Campbell argued that neither the National Tax Code nor the specific IPI legislation treat the industrial establishment in the same way as the establishment equivalent to an industrial establishment.
“The equivalence, obviously, is only useful because it is made for certain purposes expressed in law. If this were not the case, there would be no need to establish an equivalence, it would be enough to include all those that are equivalent within the general concept of industrial establishment”, he analyzed.
Therefore, every time the legislator wants to grant a certain tax benefit to establishments considered to be industrial, he does so expressly, which is not the case with the suspension of the IPI.
“It cannot, therefore, be assumed that every time the tax legislation mentions an industrial establishment, it would also implicitly mention establishments equivalent to an industrial establishment, under penalty of making the tax system, with regard to IPI, unpredictable and unmanageable, especially given the extra-fiscal function of the tax that requires calculated and specific interventions in the costs incurred at each stage of the economic chain”, he concluded. The vote in the 2nd Panel was unanimous.
Source: https://www.conjur.com.br/2022-mai-20/suspensao-ipi-nao-vale-empresas-equiparadas-industriais