The Exchange Contract Advance (ACC) is an instrument used by exporters with financial institutions to advance the amount to be obtained from the sale of products or services. It does not generate IOF payment, since the taxable event is only the settlement of the exchange transaction, and not the contracting of an advance.<\/p>\n\n\n\n
With this understanding, the 1st Panel of the Superior Court of Justice denied the special appeal of the National Treasury that aimed to tax at 0.38% the amounts received by a bus company in advance of an exchange contract.<\/p>\n\n\n\n
The decision was unanimous, in a trial this Tuesday (18\/5), according to the vote of Minister Gurgel de Faria. Voting with him were Ministers Bendito Gon\u00e7alves, Regina Helena Costa and Sergio Kukina, in addition to the summoned judge Manoel Erhardt.<\/p>\n\n\n\n
ACC is an option available to exporters as a form of export financing. In this option, the exporter enters into a contract with the importer to sell its products abroad. Payment is made through a foreign exchange contract with a bank authorized to operate in this market.<\/p>\n\n\n\n
With the ACC, the exporter receives this amount in advance, in part or in full, minus the international interest rate and the spread for the risk of the operation.<\/p>\n\n\n\n
Rapporteur, Minister Gurgel de Faria highlighted that there is an inseparable link between the ACC and the exchange transaction. Therefore, the advance cannot be considered a true credit transaction, even if it generates cash advance.<\/p>\n\n\n\n
\u201cThis is an advance exchange transaction, and should therefore be taxed, as it is linked to the purchase of foreign currency on a forward basis,\u201d he concluded.<\/p>\n\n\n\n
Article 63, section II of Law 5,172\/1966 establishes that the tax on exchange transactions \u2014 such as the IOF \u2014 has as its triggering event the delivery of national or foreign currency or its placement at the disposal of the interested party in an equivalent amount.<\/p>\n\n\n\n
The IOF is regulated by Decree 6,306\/2007, which has been amended several times, but which in item I of article 15-B defines the zero rate for exchange transactions related to the entry into the country of revenues from the export of goods and services. Therefore, IOF is not levied on advances on exchange contracts.<\/p>\n\n\n\n
\u201cWhen it comes to foreign exchange transactions linked to exports, a zero IOF rate has always been observed, following the constitutional guideline that taxes are not exported. The claim that the rule that established 0.38% on ACC during the validity of Decree 6,338\/2008 should apply is not admissible\u201d, concluded the rapporteur.<\/p>\n\n\n\n
REsp 1,452,963<\/p>