The 3rd Panel of the Superior Chamber of the CAdministrative Council of Tax Appeals (“CARF”) allowed a taxpayer operating in foreign trade to credit PIS and COFINS on port expenses (ruling no. 9303-011.412).
The vote of Counselor Vanessa Marini Cecconello prevailed, using the criteria of relevance and essentiality established by the Superior Court of Justice (“STJ”) at the time of the judgment of Special Appeal (“REsp”) 1,221,170, stated that “Due to import and export operations, both of raw materials and finished products, expenses with port services are essential to the company's production process in the initial and final stages.”.
This is an important precedent, since the prevailing understanding within CARF was unfavorable to the possibility of crediting. In February of this year, the 3rd Panel of the CARF Superior Chamber had denied another taxpayer the right to use these credits (ruling no. 9303-011.239).
The difference in understandings between the judgments, handed down by the same Chamber in such a short space of time, is due to the fact that this one was judged before the entry into force of Law No. 13,988, of April 14, 2021, while that one was judged under the aegis of the new legislation.
In other words, the prevalence of the taxpayers' thesis is closely linked to the new tiebreaker rule provided for in article 19-E, added to that of Law No. 10,522/2002 by the already highlighted Law No. 13,988/2021. In force since the end of April this year, said provision determines that “in the event of a tie in the judgment of the administrative process for determining and demanding tax credits, the casting vote does not apply (…), resolving in favor of the taxpayer”.
In the case of ruling no. 9303-011.239, the denial of the credits was due precisely to the application of the casting vote of the President of the Panel, representing the Treasury. In ruling no. 9303-011.412, there was another tie, this time applying the understanding most favorable to the taxpayer.
With the in dubio pro taxpayer principle in force in CARF decisions, it is expected that decisions granting PIS and COFINS credits in these situations will become more frequent, especially in the Superior Chamber.
Our recommendation is that companies that operate in import and export revisit the topic from this new perspective, seeking to take advantage of PIS and COFINS credits on their port expenses.
