By: Guilherme Martins
In a judgment held this Wednesday (10/27), the counselors of the 3rd Panel of the Higher Chamber of the Administrative Tax Appeals Council (CARF) unanimously decided that the wharfage expenses – cargo and merchandise handling activity at the port facilities – must be included in the Import Tax (II) calculation basis[1].
Although decisions in this sense already exist, this is the first time that the CARF’s CSRF applies the Superior Court of Justice (STJ) understanding, rendered under the rite of repetitive appeals, in the judgment of Special Appeal No. 1.799.306/RS (Topic 1.014). This is because, in March 2020, the 1st Section of the Superior Court decided that loading, unloading, and handling services integrate the customs valuation of the goods and are therefore part of the Import Tax calculation basis.
Said decision goes against the jurisprudential understanding hitherto prevalent in the STJ, by which the 1st and 2nd Court panels had decided in favor of the taxpayer. As a result of this change the following thesis prevails: “The wharfage services are included in the composition of the customs valuation and integrate the Import Tax calculation basis”. Thus, it was expected that the new understanding on the matter would be followed by all the courts and administrative agencies.
It is worth noting that the matter was submitted to consideration by the Supreme Federal Court (STF), by means of an Extraordinary Appeal. However, in May of this year, the majority of the ministers considered that as it does not involve a constitutional matter, the judgment of the topic does not pertain to the STF jurisdiction.
Thus, it is understood that the topic favors the fiscal thesis by including the wharfage costs in the calculation basis of federal taxes levied on imports.
[1] Process CARF nº 11762.720026/2014-86