The Superior Court of Justice (STJ) may define, by means of an appeal with repetitive effect, an important issue for the agricultural sector: whether there is a right to presumed PIS and Cofins credit on the processing of grains sold abroad. The issue, which will be analyzed by the 1st Section of the Court, is of particular interest to one of the main segments of Brazilian exporters, the soybean sector.
There is currently disagreement on the subject in the courts, including in the STJ itself. Ministers of the 1st and 2nd Chambers of the Court have already issued at least 37 judgments and 187 single-judge decisions in different directions.
“There are pro-taxpayer understandings, but the case law is inconsistent,” says lawyer Paulo Mothes, from the law firm Sebastião Ventura Advogados. He represented the Agroalimentos Chamber in the case, which is the author of the divergence embargo that will now be analyzed by the higher court, with repetitive effect (nº 1747725 – RS).
The tax authorities consider that the benefit is only valid if the producer industrializes the grain, transforming it into oil or bran, for example. The companies claim, in turn, that the export of the grain also goes through a beneficiation process and, therefore, they would be entitled to the presumed credit. For soybeans, the average PIS and Cofins tax rate is 4.625%.
“When companies send the grain for export, it undergoes the necessary improvement and preparation to make it suitable for human or animal consumption,” says lawyer Sebastião Ventura, owner of the firm that bears his name.
For example, the STJ dismissed an appeal filed by a company claiming presumed PIS and COFINS credits for processing soybeans, corn and wheat (No. 1817703). The court of origin understood that the company does not produce the goods, but only classifies, pre-cleans, dries, cleans, stores and ships the grains. On the other hand, the STJ dismissed an appeal filed by the Federal Government, maintaining the right to the same credits (No. 1,715,983).
The president of the STJ's Precedents and Collective Actions Management Committee, Paulo de Tarso Sanseverino, determined the adoption of the “procedure for representing a controversy”. The representative appeal for a controversy is the process chosen among several others with the same legal issue, and which will serve as a concrete case paradigm for the STJ to establish a legal thesis, making it a repetitive theme.
“The rapporteur, Minister Paulo de Tarso Sanseverino, did not analyze the object of the embargoes and recognized the divergence established in the Court itself, deciding to redistribute the appeal”, explains Marcos Poliszezuk, founding partner of Poliszezuk Advogados.
In practice, for now, the actions on the matter are proceeding normally. This is because there has not yet been a decision to suspend the ongoing proceedings. However, if the STJ rules on the matter under the repetitive appeals system, the position established will be applied to all other legal cases in which cereal producers are parties, according to attorney Sarah Mila Barbassa, from the law firm Cescon, Barrieu, Flesch & Barreto Advogados.
Among cereals, soybeans are one of the main Brazilian export products. According to the Ministry of Agriculture, Livestock and Supply, the soybean complex led agribusiness exports in December 2021, with a share of 22.9% in total agribusiness sales abroad. And soybeans in grain are the main highlight of exports. In 2021, 6.628 million tons of soybeans in grain were exported, according to the National Association of Cereal Exporters (Anec).
The core of the discussion lies in the term “produce”, contained in the provision that provides for the use of presumed PIS and Cofins credits (Law No. 10,925/2004). “The STJ, in the judgment of special appeals [No. 1,667,214/PR, 1,670,777/RS and 1,681,189/RS], concluded that the production referred to in the article would be that of industrial activity from the grains acquired, which would limit the use of credits only to national industries”, comments attorney Angela Selencovich Padilha, from the Souto Correa Advogados law firm.
However, the lawyer says, the provision did not restrict the term “production” to industrialization. Therefore, for her, it should encompass the entire production chain, including legal entities that carry out pre-industrial activities, such as drying grains before export.
As the legislation did not include the concept of production, assesses lawyer Diogo de Andrade Figueiredo, from the Schneider Pugliese law firm, “a broader interpretation should apply, and the benefit should give the PIS and Cofins credit”.
Lawyer Rubens Ferreira Jr, from Advocacia Ubirajara Silveira, argues that there should be a law to outline the parameters to be considered to determine who is entitled to PIS and Cofins credits in this sector. “The fact that this matter is established in a repetitive manner will help, but it will not resolve the problem. It transfers to the Judiciary a problem that belongs to the Legislature, which is to establish the criteria for being considered a ‘cerealist’ or not.”
Contacted by Valor, the National Treasury Attorney General's Office (PGFN) did not respond by the time this edition went to press.