The majority of the ministers of the Federal Supreme Court (STF) declared constitutional the tax incentives granted by Laws 8.387\/91 and 10.167\/01 to the IT sector, regardless of whether they are located in the Manaus Free Trade Zone. The trial of ADI 2399 in a virtual plenary session was concluded last Friday (11\/2) and was seven to four in favor of declaring the incentives regular.<\/p>\n\n\n\n
In the action, which had been dragging on in court for more than 20 years, the Amazonas government argued that the laws transformed incentives that should have been regional into sectoral ones, reducing the competitive advantage of businesses installed in the Manaus Free Trade Zone.<\/p>\n\n\n\n
Attorney Bruna Luppi, a partner in the tax department at Vieira Rezende Advogados, explains that one of the arguments is that, according to article 40 of the Transitional Constitutional Provisions Act (ADCT), the benefits of the Manaus Free Trade Zone should be maintained for 25 years \u2013 that is, until 2013, a period later extended until 2073 \u2013 from the enactment of the Constitution. Therefore, based on this argument, IT assets could not be removed from the list of regional benefits of the Free Trade Zone to be treated sectorally.<\/p>\n\n\n\n
\u201cThe discussion is whether there would be an undue limitation, by removing IT assets from the benefits of the Manaus Free Trade Zone, which the ADCT said should be maintained\u201d, explains the lawyer.<\/p>\n\n\n\n
The majority of judges agreed with the dissenting opinion expressed by Minister Dias Toffoli. The judge considered that, when the 1988 Constitution was enacted, IT goods, including those produced in the Manaus Free Trade Zone, were already subject to the IT Law (Law 7,232\/84), and not to the incentives of the Manaus Free Trade Zone.<\/p>\n\n\n\n
For Toffoli, therefore, the laws questioned by the Amazonas government did not reduce the benefits of the Manaus Free Trade Zone, in a way that violated article 40 of the ADCT, since the incentives granted to IT goods were not even governed by the same rules of the Free Trade Zone.<\/p>\n\n\n\n
Toffoli was accompanied by ministers Gilmar Mendes, C\u00e1rmen L\u00facia, Luiz Fux, Nunes Marques and Ricardo Lewandowski. Alexandre de Moraes presented a separate vote, but also considered the request of the Amazonas government to be unfounded.<\/p>\n\n\n\n
With a dissenting vote, the rapporteur, Minister Marco Aur\u00e9lio, argued that the scope of article 40 of the ADCT is reflected in an obstacle to any other policy that could undermine the incentive for companies to install and remain in the Free Trade Zone.<\/p>\n\n\n\n
\u201cIt is inconceivable that tax treatment would equalize, in a linear or sectoral manner, advantages granted to companies established in any part of the territory, in the large production and consumption centers, with those related to the Manaus Industrial Hub,\u201d wrote the rapporteur in his vote.<\/p>\n\n\n\n
Marco Aur\u00e9lio was accompanied by ministers Rosa Weber, Edson Fachin and Lu\u00eds Roberto Barroso.<\/p>\n\n\n\n