By four votes to two, the 2nd Panel of the 4th Chamber of the 3rd Section of the Administrative Council of Tax Appeals (Carf) dismissed the collection of Import Tax at the rate of 20% on the acquisition abroad of central multimedia equipment for installation in cars.<\/p>\n\n\n\n
The panel understood that the taxpayer, Honda Autom\u00f3veis do Brasil, was correct in classifying the product as radio navigation equipment, or GPS, and not as broadcasting devices, a classification defended by the tax authorities. The process is 11829.720040\/2014-68.<\/p>\n\n\n\n
The classification as radio navigation, under code 8526.91.00 of the Common Nomenclature of Mercosur (NCM), has a zero rate of Import Tax. Meanwhile, broadcasting equipment, under code 8527.21.90 of the NCM, has a rate of 20%. In the infraction notice, the tax authorities also included PIS and Cofins, components of the customs value, in addition to interest and fines.<\/p>\n\n\n\n
The tax classification of multimedia centers is a new topic at Carf. According to JOTA's investigation, only two precedents related to the subject were judged by the court: case 10111.720279\/2017-02, analyzed in 2019, and 11968.720423\/2011-07, judged in 2021. In both, the NCM code assigned by the tax authorities to the multimedia center was 8528.72.00, referring to digital TV. In addition, the taxpayer lost in the judgment of both cases.<\/p>\n\n\n\n
For Paulo Mansin, from Advocacia Lunardelli, who acted in the defense of the company, the decision of this Tuesday (09\/27) is a precedent that should impact the entire automotive chain. He also noted that, in his assessment, the existing precedents in the Carf do not allow the discussion to be taken to the Superior Chamber because the tax authorities have adopted a different code in the NCM. To appeal to the highest instance of the Carf, the parties must demonstrate that there is a difference in case law, indicating decisions that differ from those they intend to contest.<\/p>\n\n\n\n
GPS<\/p>\n\n\n\n
Mansin defended, in oral arguments, the tax classification of the multimedia center as a GPS, based on the General Interpretative Rule (RGI) 3 B of the NCM, which deals with mixed products and products consisting of different articles and materials.<\/p>\n\n\n\n
According to the standard, in these cases, the material or article that gives the essential characteristic of the product will be determined considering issues such as the complexity, value, volume and weight of the components. Since the navigation board would be the most complex and determining component in the price of the multimedia center, this should be considered its main function.<\/p>\n\n\n\n
The lawyer also stated that the tax classification adopted by the taxpayer was endorsed at different times by the Federal Revenue Service and that the company trusted the public administration.<\/p>\n\n\n\n
One of the pieces of evidence of endorsement would be that some of the goods were cleared, without objections, in the yellow and red channels. In addition, Mansin noted that between 2011 and 2014, the period of the assessment, there were two consultation solutions in force that would authorize the classification adopted: Consultation Solution Diana 7\/2009 and Consultation Solution SRRF 6\u00aa Diana 19\/2013.<\/p>\n\n\n\n
Divergence<\/p>\n\n\n\n
The rapporteur of the case, counselor Cynthia Elena de Campos, granted the taxpayer's appeal. The judge agreed with the argument that RGI 3 B could be applied to the specific case. \u201cThe goods can be classified under rule 3 B. Determining the essential characteristic by value, it is clear that the radio navigation function is preponderant,\u201d she said.<\/p>\n\n\n\n
The chairman of the panel, Pedro Sousa Bispo, opened a dissenting opinion. The judge cited the judgment of case 11968.720423\/2011-07, of which he was the rapporteur. For the counselor, the rationale applicable to the tax classification of the multimedia center is RGI 3 C. The rule provides that \u201cin cases where rules 3 A and 3 B do not allow for classification, the merchandise is classified in the last position in numerical order, among those likely to be taken into consideration\u201d.<\/p>\n\n\n\n
Bispo also stated that the multimedia center does not have a predominant function, and therefore, the definition of the function is subjective, depending on the user. \u201cFor each purchaser, it has one or more main functions. For people who have difficulty parking, the rear view camera will be the main function, while for those who like to listen to music, it will be the radio,\u201d he stated. The majority of the councilors, however, agreed with the rapporteur's understanding.<\/p>\n\n\n\n