Companies operating in foreign trade have obtained a favorable precedent in the last instance of the Administrative Council of Tax Appeals (Carf) to use PIS and Cofins credits generated by expenses in ports. Ingredion, which works with milling corn and other vegetables for the industry, managed to reverse a tax charge for the use of credit for loading and unloading cargo, dispatchers and storage.<\/p>\n\n\n\n
The decision was made by the 3rd Panel of the Superior Chamber of the Carf. According to lawyers, most of the administrative court's rulings on the matter are still unfavorable to the taxpayer. \u201cThe Superior Chamber is hesitant regarding the possibility of crediting,\u201d says Diogo Martins Teixeira, partner at the Machado Meyer law firm.<\/p>\n\n\n\n
In February, for example, the same group denied taking credit for port expenses in the export of alcohol and sugar by Cosan. At the time, the majority of the councilors understood that these expenses would not be inputs capable of generating credit. This is because they are made after the production process of the goods has been completed (case no. 13888.002438\/2004-7).<\/p>\n\n\n\n
The Federal Revenue Service does not recognize these credits and fines the taxpayer because it considers that the expenses with port services occur before or after the production process. Therefore, they would not be directly related to the manufacture of goods or provision of services.<\/p>\n\n\n\n
In the case of Ingredion, the victory was due to the tie-breaking rule for judgments provided for in article 19-E of Law No. 10,522 of 2002. According to the provision incorporated last year, the taxpayer must emerge victorious in the event of a tie in the vote. In a note to Valor, the National Treasury Attorney's Office stated that "the decision represents yet another reversal in Carf's jurisprudence motivated by the change in the system of the casting vote."<\/p>\n\n\n\n
The vote of counselor Vanessa Marini Cecconello prevailed. She cited as one of the grounds the guidance of the Superior Court of Justice (STJ), in a repetitive appeal, that in order to generate credit the input must be essential or relevant to the development of the economic activity. She also used the \u201csubtraction test\u201d to verify whether the removal of the input from production implies in the unfeasibility or loss of quality of the product or service (case no. 10314.720217\/2017-14).<\/p>\n\n\n\n
For Cecconello, expenses with port services are essential to the production process of the company that operates with imports and exports. \u201cThe taxpayer is right regarding the essentiality and relevance of port services for its production process, as they are inherent to the entry or exit of goods from the country\u201d, stated the counselor in her vote.<\/p>\n\n\n\n
Logistics and compliance with port regulations involve a series of outlays by companies to various service providers. There are expenses, for example, for cargo handling, container loading, freight from the port to storage and with brokers for bureaucratic issues.<\/p>\n\n\n\n
According to lawyer Fl\u00e1vio Lopes de Almeida, from LacLaw Consultoria Tribut\u00e1ria, the understanding of the Superior Chamber of Carf tends to generate significant savings for companies that import and export goods, and collect contributions with a rate of 9.25%. \u201cThe taxpayer cannot restrict the essentiality of the input to the production plant, to what happens inside the factory gates\u201d, he states.<\/p>\n\n\n\n
For Thiago Macedo, Vice President of Commercial Finance, Planning and Financial Analysis at Ingredion South America, the decision is relevant because it applies the understanding of the STJ. He argues that the production process should be analyzed broadly, in order to identify the relevance, relevance and essentiality of the input in production. \u201cThe subtraction of port services completely makes business activity unfeasible,\u201d he stated.<\/p>\n\n\n\n
In the opinion of Diogo Martins Teixeira, from Machado Meyer, the precedent is relevant. But it does not address the controversial issue of using credits generated by expenses incurred before or after production, such as the import of an essential raw material. \u201cBased on the non-cumulative system, it is clear that port expenses should generate credit. It is a very significant amount. But there is a gray area when we try to fit these items into the legal box,\u201d he states.<\/p>\n\n\n\n