By Marcelo Blecher and Camila Friaça

The Federal Court of the 3rd Region rejected the understanding consolidated within the Superior Court of Justice (“STJ”), in the systematics of repetitive appeals, when judging Special Appeal No. 1,403,532/SC, to the effect that customs clearance and the sale of a product would be two separate and independent operations, so that the Industrialization Tax (“IPI”) should be levied on both the import and the sale of the product.

In the ruling handed down by Judge Diana Brunstein, of the 7th Federal Civil Court of São Paulo, it was stated that there should be no IPI levied on the resale of goods purchased abroad, as long as the goods do not undergo an industrialization process in Brazil. According to the Judge, it would be discriminatory to impose a second IPI levy on importers if traders of national products do not have this same requirement.

In the case at hand, the Judge understood that she would not need to follow the consolidated understanding on the subject within the scope of the STJ, given that the Federal Supreme Court (“STF”) attributed a suspensive effect to the appeal when recognizing the general repercussion of the controversy over the collection of IPI on the resale of goods imported from abroad in Extraordinary Appeal No. 946,648. In this step, the understanding was adopted that, at least for the time being, the incidence of IPI would be ruled out in these cases.

It is worth remembering that the President of the STF, Minister Dias Toffoli, included the Extraordinary Appeal in question on the STF Plenary's trial agenda on October 31, 2018, but the case was not tried. Recently, the trial calendar for the first half of this year was released, but, to date, there is no date for the case to return to the SRF Plenary's trial agenda.

The Mazzucco e Mello Advogados tax team is available to provide any clarification on this topic.