By a vote of 4 to 2, the panel upheld the assessments of IPI, PIS, and Cofins taxes resulting from the reclassification of imported liquid nutritional supplements by Danone Ltda as "other waters and non-alcoholic beverages" (NCM 2202.90.00). The taxpayer had classified the goods as "various food preparations" (NCM 2106.90.90).
The process analyzes the following products: Forticare, Diasip, Souvenaid, Fortini, Cubitan, Nutrini, Nutrison, and Nutridrink. The defense argued that they possess medical or therapeutic functions that common beverages do not have and are therefore indicated for sick or debilitated people. It argued that the fact that the supplements are sold in liquid form does not classify them as "other beverages" and cited a report prepared by an expert accredited by the Federal Revenue Service with a conclusion to that effect.
The opinion of council member Anselmo Messias Ferraz Alves prevailed. The judge considered the reclassification made by the tax authorities to be correct because "other waters and non-alcoholic beverages" is a more specific category than "various food preparations" and includes liquid supplements. Alves was joined by council members José de Assis Ferraz Neto, Alessandra Lessa dos Santos, and Arnaldo Diefenthaeler Dornelles.
The rapporteur, Councilor Cynthia Elena de Campos, sided with the taxpayer and was outvoted. Campos stated that the supplements are intended for cancer patients, diabetics, people undergoing enteral nutrition, or other clinical conditions that require a differentiated nutritional formulation. According to her, these specificities justify classifying the supplements as food preparations. She was joined by Councilor Rafael de Souza Medeiros.
Collegiate body: 2nd Panel of the 4th Chamber of the 3rd Section
Process: 10660.730139/2020-13
Parts: Danone Ltda and the National Treasury
Rapporteur: Cynthia Elena de Campos
Source: JOTA