In a unanimous decision, the Federal Supreme Court (STF) decided that the indirect export of products – carried out by means of trading companies, companies that act as intermediaries – is not subject to the incidence of social contributions (tax immunity).
The analysis of the matter was concluded in the plenary session of this Wednesday (12), in the judgment of the Direct Action of Unconstitutionality (ADI) 4735 and the Extraordinary Appeal (RE) 759244.
The Court produced the following thesis of general repercussion (Theme 674): “The immunizing norm contained in item I of paragraph 2 of Article 149 of the Constitution of the Republic reaches the revenues arising from indirect export operations, characterized by the existence of negotial participation of an intermediary exporting company.” The immunity provided for in the constitutional provision establishes that social contributions and contributions for intervention in the economic domain do not apply to revenues arising from export.
Last week, the Court began the joint judgment of the cases, with the presentation of the reports of Justices Alexandre de Moraes, in the ADI, and Edson Fachin, in the RE. Subsequently, the oral arguments of the interested parties were held. Today, the reporting justices delivered their votes for the granting of the ADI – with the declaration of unconstitutionality of two provisions of Normative Instruction 971/2009 of the Secretariat of the Federal Revenue of Brazil that restricted the tax immunity – and for the granting of the RE, with the reform of the decision of the Federal Regional Court of the 3rd Region (TRF-3) that held inapplicable the application of this benefit.
Tax immunity x exemption
Responsible for the reporting of the ADI, Justice Alexandre de Moraes observed that the case deals with the interpretation of a rule of immunity, which has constitutional provision, and not of exemption, which is an infraconstitutional matter. According to him, the interpretation is different for each hypothesis.
For the reporting justice, there can be no obstacle to immunity for indirect export. He stated that it is not possible to make a tax differentiation between direct sales abroad and indirect sales – negotiations in the domestic trade between producer and seller or the constitution of larger companies for export. According to the reporting justice, internal sales aimed at the external market integrate, in essence, the export itself, and the fact that they occur within the national territory and between Brazilians does not remove from their economic sense the idea of export. Consequently, these operations may be equated to an internal sale for taxation purposes.
Intention of the Constitution
Justice Alexandre de Moraes emphasized that the intention of the constituent legislator in establishing this immunity was to relieve the tax burden on commercial transactions that involve the sale abroad. This is because taxing the entire internal chain makes the Brazilian product more expensive and less competitive abroad, and the incentive of tax immunity contributes to the generation of foreign exchange and to the development of national products. “Excessive taxation would remove these products from the international market,” he said.
According to the reporting justice of the ADI, it is not a matter of giving a broader interpretation to extend rules not provided for, since the Federal Constitution provides for direct and indirect export, with the purpose of protecting the national product abroad, without benefiting large producers to the detriment of small ones, which would violate free competition. “There is, in my view, no reasonableness to exclude from the constitutional immunity the indirect export,” he stressed. “What matters is whether the final destination is export, since, with this, the country profits externally in the balance of trade and internally with the generation of income and employment of small producers.”
Guarantee of the object
In a brief vote, Justice Edson Fachin held that indirect export operations are covered by the constitutional rule of tax immunity. “The relief of the taxes that influence the price of goods and services must be structured in a format intended for the guarantee of the object, and not of the passive subject of the tax obligation,” he stated, in emphasizing the objective nature of the tax immunity.
The justice accepted the arguments contained in the extraordinary appeal by understanding that they are in conformity with the constitutional rules on the matter. Thus, he granted the RE in order to reform the decision of the TRF-3 and establish the unfeasibility of exactions based on the restrictions provided for in Article 245, paragraphs 1 and 2, of Normative Instruction 3/2005 of the Secretariat of the Social Security Revenue as to the exports of sugar and alcohol carried out by means of tradings.
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Source: STF
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