By a vote of four to three, the 1st Panel of the 3rd Chamber of the 3rd Section of the Administrative Council of Tax Appeals (Carf) allowed the taxpayer to take advantage of Cofins credits on expenses with freight of finished products between establishments of the same company. The understanding prevailed that freight is necessary to enable the sale of the company's products, since the items must be sent to branches close to the consumer market.<\/p>\n\n\n\n
Thus, for the councilors, the situation falls within the scope of article 3, item IX, of Laws 10.637\/2002 and 10.833\/2003. The legislation allows the taking of PIS\/Cofins credits on expenses with storage of goods and freight in the sales transaction. By unanimous vote, the collegiate also allowed the use of Cofins credits on expenses with fuel and lubricants used in forklifts. The vote had a lower than usual quorum of eight councilors, due to the absence of a tax judge.<\/p>\n\n\n\n
The company's lawyer, Natalia Saboia, stated, in oral arguments, that the possibility of crediting storage and freight expenses in the sales transaction is provided for in article 3, item IX, in Laws 10.637\/2002 and 10.833\/2003.<\/p>\n\n\n\n
Saboia argued that taxpayers' expenses with freight between their own establishments are necessary to enable the sale of products, since the company, located in Cear\u00e1, needs to send the goods to branches in the South and Southeast, where the consumer markets are located.<\/p>\n\n\n\n
The tax attorney also said that the tax authorities denied the credit for fuels and lubricants used in forklifts on the grounds that the substances were not consumed in the production process. However, the attorney noted that the justification predates the judgment by the Superior Court of Justice (STJ) of special appeal (REsp) 1,221,170. At the time, the Court defined the concept of inputs for the purposes of taking PIS\/Cofins credits in light of the criteria of essentiality and relevance of the expenses for the taxpayer's economic activity.<\/p>\n\n\n\n
According to Natalia Saboia, in the case of the appellant, whose corporate purpose is the manufacture and sale of agricultural pesticides, phytosanitary products, fertilizers and compost, the fuels and lubricants used in forklifts fit the essentiality criterion, as their absence would deprive the company of quality and sufficiency in the manufacture and sale of its products.<\/p>\n\n\n\n
Sales operations<\/p>\n\n\n\n
The rapporteur, counselor Sem\u00edramis de Oliveira Duro, accepted the argument that freight of finished products is eligible for credit, according to article 3, item IX, of Laws 10.637 and 10.833. \u201cIt [the company] has its headquarters in Cear\u00e1 and sends [the products] to other establishments it owns, selling to the South, Southeast and Central-West, where agribusiness is more developed\u201d, she stated. The judge also allowed credits on fuels and lubricants, arguing that the taxpayer\u2019s forklifts \u201ctransport raw materials, intermediate products and packaging material internally\u201d.<\/p>\n\n\n\n
However, counselor Jos\u00e9 Ad\u00e3o Vitorino de Morais disagreed with regard to the freight of finished products. The judge stated that his position is not to admit credit in this case.<\/p>\n\n\n\n
Counselor Rodrigo Lorenzon Yunan Gassibe, who supported the dissent, noted that, in his assessment, the criteria of essentiality and relevance defined by the STJ only apply to inputs, not including sales transactions. Therefore, it would not be appropriate to apply them to freight that would be necessary for the marketing of products. Furthermore, for the counselor, freight can only be logistical operations of the taxpayer, not intended for sale.<\/p>\n\n\n\n
The dissent was defeated by four votes to three. Furthermore, the councilors were unanimous in allowing the taking of credits on fuels and lubricants. The result was applied to processes 10380.903943\/2013-45, 10380.903944\/2013-90 and 10380.903945\/2013-34, of the same taxpayer.<\/p>\n\n\n\n
The case judged was 10380.903942\/2013-09.<\/p>\n\n\n\n