Unanimously, the ministers of the Federal Supreme Court (STF) declared the constitutionality of the inclusion of IPI in the calculation basis of PIS and Cofins required and collected by vehicle manufacturers and importers under the tax substitution regime.<\/p>\n\n\n\n
With this, the ministers denied the appeal of Open Auto \u2013 Com\u00e9rcio e Servi\u00e7os Automotivos LTDA (RE 605506). The trial ended last Wednesday (10\/11) in the virtual plenary of the STF.<\/p>\n\n\n\n
The decision is favorable to the Union, which estimated a fiscal impact of R$1.3 billion per year and R$7.6 billion over five years in the event of defeat, according to the 2022 Budget Guidelines Law. According to data from the National Council of Justice (CNJ), there are at least 3.4 thousand processes that may be affected by the decision in this appeal.<\/p>\n\n\n\n
In her vote, the rapporteur, Justice Rosa Weber, concluded that the dealer, who filed the appeal, does not even collect the IPI. Therefore, she cannot claim that the IPI is part of the calculation basis for PIS and Cofins in the resale. In the chain, those who pay the IPI are the vehicle manufacturers and importers.<\/p>\n\n\n\n
For Rosa Weber, contrary to what the reseller argues, there is no correspondence between the case and that of ICMS in the PIS and Cofins basis. In the judgment of the \u201cthesis of the century\u201d, RE 574706, the STF understood that ICMS is not part of the basis of contributions because it is not revenue, but rather an amount transferred to the Public Treasury. Rosa Weber states that the argument about the similarity of the themes \u201cseduces, but does not convince\u201d.<\/p>\n\n\n\n
\u201cThere is no way for a vehicle retailer to claim that social contributions would be levied on amounts that are not his revenue, since they are destined for the Treasury, since he does not collect IPI to the public coffers. When a car dealer sells a vehicle to a consumer, he does not receive any amount that will later be collected by the National Treasury as IPI,\u201d says the rapporteur.<\/p>\n\n\n\n
On the other hand, Rosa Weber highlighted that, from an economic point of view, although the dealer does not collect the IPI, it may be that, when purchasing a product, such as a car, he has to pay the price of that product plus the IPI, since manufacturers and importers collect the tax.<\/p>\n\n\n\n
Thus, the dealer will have a \u201ccost\u201d that is equal to the sum of product + IPI. In order not to make a loss, he will have to resell the vehicle to the consumer for a higher price than this. Thus, said the minister, this calculation basis (product + IPI) is \u201ceven generous\u201d. In practice, this basis assumes that the dealer will sell the vehicle without profit, that is, without raising the price compared to the price paid to the automakers.<\/p>\n\n\n\n
Limited effect<\/p>\n\n\n\n
In cases where the reseller eventually makes sales at a loss, that is, below what was calculated for the collection of taxes in the previous stage, Rosa Weber observed, the retailer may request the refund of the taxes collected on this difference. \u201cThere is, therefore, no violation of the Magna Carta,\u201d said the minister.<\/p>\n\n\n\n
Through the tax substitution regime, manufacturers and importers considered substitutes collect in advance the PIS and Cofins that would be paid by the resellers, the substitutes.<\/p>\n\n\n\n
Tax lawyer Giusepe Pecorari Melotti, from the Bichara Advogados law firm, states that, although the judgment is relevant, it may have a limited effect in terms of time.<\/p>\n\n\n\n
In its appeal, the company Open Auto \u2013 Com\u00e9rcio e Servi\u00e7os Automotivos LTDA questions the constitutionality of Provisional Measure (MP) 2.158-35\/01. This MP, in its article 43, defines the tax substitution regime for vehicle manufacturers and importers.<\/p>\n\n\n\n
However, as of 2002, with the enactment of Law 10.485\/2002, the taxation of motor vehicles began to be carried out under the single-phase PIS and Cofins regime, with the tax burden concentrated in one stage of the chain. \u201cTherefore, this rule that is being judged by the Supreme Court must have a limitation regarding the production of effects, because in 2002 the tax substitution regime for vehicles was dropped and the single-phase regime was introduced,\u201d he explained.<\/p>\n\n\n\n