The 1st Panel of the Superior Court of Justice decided that the tax benefit for retail sales of electronics, such as smartphones and notebooks, scheduled to last until 2018, could not have been revoked in 2015. The Lei do Bem (No. 11,196, of 2005) granted a zero PIS and Cofins rate to certain products to encourage digital inclusion.<\/p>\n\n\n\n
The decision is an important precedent for those who are already questioning the matter in court. Considering all potentially interested taxpayers, the economic impact of the decision is estimated at around R$15T20 billion in 2016 values, according to the Attorney General's Office of the National Treasury (PGFN).<\/p>\n\n\n\n
In 2009, the tax benefit of the Lei do Bem was extended until 2014, when it was extended again until 2018, by Law No. 13,097. However, along the way, another law, Law No. 13,241, of 2015, removed the tax exemption for retailers. The benefit to the industrialist was not revoked and continues until 2029.<\/p>\n\n\n\n
Retailers claim that tax incentives granted for a specific period and with certain conditions cannot be revoked at any time, and premature revocation is unacceptable. The National Treasury, on the other hand, considers that the discussion is constitutional, since it is necessary to define whether a law could revoke a zero-rate benefit established by another law.<\/p>\n\n\n\n
In the Federal Regional Courts (TRFs), decisions favorable to the National Treasury prevail. The appeal of a retailer, therefore, reached the STJ. The rapporteur, Minister Napole\u00e3o Nunes Maia Filho, was the first to vote in favor of the companies, when the trial began, in December 2020.<\/p>\n\n\n\n
Napoleon understood that the early revocation caused enormous surprise and harm to taxpayers, who \u201ctrusted\u201d the government\u2019s talk. He added that the tax benefit was intended to affect the social classes more than the productive agents.<\/p>\n\n\n\n
The vote was followed by Justice Regina Helena Costa and, in yesterday's session, by Justice S\u00e9rgio Kukina. According to Kukina, the National Tax Code (CTN) provision on exemption also applies to zero-rate cases and the rules of the game could not be changed in advance. Justices Gurgel de Faria and Benedito Gon\u00e7alves were defeated (REsp 1849819, 1845082 and 1725452).<\/p>\n\n\n\n
The issue is already being analyzed by the Supreme Federal Court (STF) in another case. In it, there are three votes in favor of the discussion being of an infraconstitutional nature (RE 1124753). The analysis by the STF ministers was interrupted by a request for review by Minister Gilmar Mendes.<\/p>\n\n\n\n
If the STF decides that the matter is infraconstitutional, the discussion will end at the STJ, where the taxpayers have just won in the First Chamber. Since there is still no precedent from the Second Chamber, the PGFN cannot appeal the merits at the STJ.<\/p>\n\n\n\n
According to attorney Amanda Geracy, the Second Panel has understood that the cases are monocratic due to their constitutional nature, and therefore does not judge their merits. The PGFN intends to appeal these cases directly to the STF.<\/p>\n\n\n\n
According to Ariane Guimar\u00e3es, a partner at Mattos Filho law firm who is working on the case at the STJ, the STJ ruling is a precedent for those already discussing the matter in court. However, she warns that retailers must have continued to follow the legal requirements until 2018, because this is a benefit with counterparts.<\/p>\n\n\n\n
The requirements established by law are that: the product must be purchased from a manufacturer in Brazil, within the context of the Basic Production Process and that it charges the prices defined in the decree. \u201cThe decision does not apply immediately to everyone; anyone who wants to take advantage of it must file their own lawsuit,\u201d says Vinicius Juc\u00e1, tax partner at TozziniFreire. \u201cThose who have not filed a lawsuit can still do so and take advantage, from June 2016 to December 31, 2018, if they can prove that they were using the tax benefit before the revocation, fulfilling the conditions, and were harmed.\u201d<\/p>\n\n\n\n