Unanimously, the 1st Panel of the 4th Chamber of the 3rd Section of the Administrative Council of Tax Appeals (Carf) understood that IPI does not apply to the distribution of packaging by establishments equivalent to industrial establishments, applying the tax benefit provided for in article 29 of Law 10.637\/2002.<\/p>\n\n\n\n
The case involves two establishments with different CNPJs, one that manufactures and the other that distributes packaging. The assessment was made against the taxpayer that does the distribution. The tax assessment was based on Normative Instruction (IN) 948\/09.<\/p>\n\n\n\n
For inspection purposes, the tax benefit of article 29 of Law 10.637 would not be applicable to companies with activities equivalent to industrial activities, as is the case of the taxpayer.<\/p>\n\n\n\n
Law 10.637 states that \u201craw materials, intermediate products and packaging materials will be distributed by the industrial establishment (\u2026) without the incidence of IPI.\u201d<\/p>\n\n\n\n
The defense argued that, although they have different CNPJs, in practice, the establishments operate as one.<\/p>\n\n\n\n
\u201cThe company has only one establishment, and it is exclusively at this location that the products are manufactured and shipped to its customers. There is no prior shipment of the products that would jeopardize the application of the benefit,\u201d said attorney Filipe Carra, in oral argument. The defense attorney claims that there is a separation in the CNPJ only for the purpose of control by the tax authorities of the state in which it is located.<\/p>\n\n\n\n
For the rapporteur, counselor Oswaldo Gon\u00e7alves de Castro Neto, the establishments are distinct, as they have different assets and activities. However, the counselor understood that item 1 of paragraph 1 of article 29 of Law 10.637 allows the benefit to the establishment equivalent to the industrial one.<\/p>\n\n\n\n
This is because in the provision cited by him, the caput states that the tax benefit covers \u201cindustrial establishments\u201d, in a generic way, while section 1 of paragraph 1 of the same article adds a specification also for \u201cmanufacturing industrial establishments\u201d. \u201cThe qualification of industrial establishments as manufacturers in the paragraphs of article 29 indicates that the caput of the same rule includes within the concept of manufacturing industrial establishments and those that are not,\u201d he said.<\/p>\n\n\n\n
The process is number 10976.720013\/2019-43.<\/p>\n\n\n\n