The ministers of the 1st Chamber of the Superior Court of Justice (STJ) decided, by majority, that Azul Linhas A\u00e9reas Brasileiras SA must pay the additional 1 percentage point of Cofins-Importa\u00e7\u00e3o on imported aircraft parts. The score was three to two in favor of granting the appeal of the National Treasury.<\/p>\n\n\n\n
With this, the ministers reformed the decision of the Federal Regional Court of the 1st Region (TRF1), which had dismissed the payment requirement.<\/p>\n\n\n\n
In the opinion of the TRF1, the establishment of an additional 1 percentage point in the Cofins-Importation rate (\u00a7 21 of article 8 of Law 10865\/14) does not revoke the tax benefit previously granted for the parts in question. The exemption had been defined in \u00a7 12 of article 8 of the same law. The main argument of the court of origin was that the rule that defined the exemption is special and, therefore, cannot be revoked by a general rule, applying the criterion of specialty.<\/p>\n\n\n\n
The trial began on August 10 and resumed last Tuesday (10\/5), with the presentation of a vote seen by Minister Regina Helena Costa.<\/p>\n\n\n\n
In the session held on August 10, the rapporteur, Justice Benedito Gon\u00e7alves, accepted the arguments of the Treasury and understood that, according to the explanatory memorandum of MP No. 540\/2011, which instituted the surcharge, the increase in the Cofins-Importation rate sought to equalize the taxation of goods produced in Brazil in relation to imported goods. He highlighted that the constitutionality of this increase has already been recognized by the Supreme Federal Court (STF), in the judgment of RE 1178310, with general repercussions recognized in Theme 1047.<\/p>\n\n\n\n
The minister considered that, both by article 111 of the National Tax Code (CTN) and by other methods of interpretation, there is no doubt about the broad scope that the legislator intended to confer with the increase in the Cofins-Importation rate. According to the CTN provision, tax legislation that provides for the suspension or exclusion of tax credits, granting of exemption and waiver of compliance with accessory tax obligations is interpreted literally.<\/p>\n\n\n\n
\u201cI conclude that not even from a teleological point of view [of the purpose of the legislative change] is there any reason to interpret that the legislator intended to maintain the zero rate of taxation on related products when imported if the same products when made in Brazil were subject to this contribution\u201d, said the rapporteur at the time.<\/p>\n\n\n\n
The rapporteur was accompanied by ministers S\u00e9rgio Kukina and Gurgel de Faria.<\/p>\n\n\n\n
Last Tuesday (10\/5), Justice Regina Helena opened the divergence by voting against the additional fee. The judge emphasized that Azul had a favorable decision \u2013 and, therefore, for the exemption \u2013 in all previous instances. Regina Helena also reaffirmed the understanding of the TRF1, in the sense that a general rule cannot revoke a special one.<\/p>\n\n\n\n
\u201cIn analyzing the specific case, the regional court ruled that the current contradiction between \u00a7 21 of article 8 of Law 10865\/14 and \u00a7 12 of article 8 of the same law must be remedied by applying the principle of specialty. I believe that the argument of the court of origin is correct, in the sense that the principle of specialty must be applied\u201d, said the minister. She was joined by the summoned judge Manoel Erhardt.<\/p>\n\n\n\n
The case judged by the 1st Panel of the STJ was REsp n\u00ba 1926749\/MG.<\/p>\n\n\n\n