By unanimous decision, the collegiate of the 1st Panel of the 4th Chamber of the 3rd Section of Carf denied the IPI credit on the acquisition of exempt inputs by a company established in the Manaus Free Trade Zone. The understanding was to apply Binding Precedent 58 of the Federal Supreme Court (STF), which defined that there is no right to presumed IPI credit on the entry of \u201cexempt inputs, subject to zero tax rate or non-taxable\u201d.<\/p>\n\n\n\n
The rapporteur, counselor Gustavo Garcia Dias dos Santos, defended the application of the summary, which originates from the judgment of RE 398,365 (Theme 844) in 2015 by the STF.<\/p>\n\n\n\n
\u201cThe prohibition on taking out credit for exempt acquisitions by companies established in the Manaus Free Trade Zone, due to the exemption from IPI on the acquisition of inputs in the domestic market or imported, as generally understood by the STF in RE 398,365 and Theme 884, in addition to Binding Precedent 58, in no way frustrates the constitutional objectives of reducing regional inequalities. From an economic and tax point of view, the company established there is already fully and effectively exempt from any tax burden, even indirect, whether on its entries or exits,\u201d said the rapporteur.<\/p>\n\n\n\n
In his defense, the taxpayer argued that it would be the case to apply the rationale of the STF decision in RE 592,891, which in general repercussion established the thesis that there is a right to IPI credit \u201con the entry of inputs, raw materials and packaging material acquired from the Manaus Free Trade Zone under an exemption regime\u201d.<\/p>\n\n\n\n
\u201cThe rationale of the STF in that judgment [RE 592891], and which should be applied to the specific case, is that taxpayers who establish themselves in the Manaus Free Trade Zone, due to all the difficulties faced in establishing themselves, all the costs incurred to operate in that region deserve tax treatment, as stated in the summary of the judgment, very special\u201d, argued lawyer Ana Luisa Varella.<\/p>\n\n\n\n
In the rapporteur's understanding, the precedent defended is different from the specific case. The precedent discusses the credit for inputs sold by companies in the Manaus Free Trade Zone. In the appeal analyzed this Tuesday, the discussion is about credit for purchases made by companies in the region. For the rapporteur, the precedent could only be applied if the factual situation of the specific case had \u201cperfect subsumption\u201d to the decision of the STF, which, in his opinion, is not the case. The rest of the councilors agreed with him.<\/p>\n\n\n\n
\u201cIt is necessary to take into account that the factual situation of the case does not conform to the scenario assessed in the case of RE 592891. While the STF took care of examining the right to IPI credit on exempt acquisitions with the Manaus Free Trade Zone, the appellant intends to appropriate credit on exempt acquisitions for the Manaus Free Trade Zone because it is installed there, with a project approved by the Superintendence of the Manaus Free Trade Zone [Suframa], taking advantage of the IPI exemption on acquisitions of inputs\u201d, said the rapporteur.<\/p>\n\n\n\n
The processes are under numbers 10283.906417\/2009-59 and 10283.906568\/2009-15.<\/p>\n\n\n\n