News STFImprimir Wednesday , November 6, 2013 Completed trial of REs on the incidence of VAT on importation of goods without commercial

" News STFImprimir
Wednesday , November 6, 2013
Completed trial of REs on the incidence of VAT on importation of goods without commercial
The Plenum of the Supreme Court (STF ) concluded on Wednesday ( 6 ) , the judgment of Extraordinary Appeals ( REs ) 474267 and 439796 , dismissing the first and granting the second. Both deal with the constitutionality of the Tax on Transactions relating to the Goods and Services ( ICMS ) on import of goods by companies not traders .
In SR 474267 , the government of Rio Grande do Sul rebelled against the judgment of the Court decided that state that the non-levy of VAT on imported goods by civil society dedicated to providing medical services , even after the advent of EC 33/2001 , since the GST only reach imports if the recipient were a taxpayer, qualified or not by habituation ( Article 155 , paragraph 2 , item IX , 'a' , of the Federal Constitution, amended by EC 33 ) . The Supreme Court confirmed this understanding , dismissing the RE filed by the state government .
Even in judgment, the TJ- RS which became Article 155 , item II of the Constitution uses the term "goods " as well subject to ICMS tax on imports . And , according to that court, " merchandise " , according to the commercial law is good purchased for " mercancia " , or for resale . And , according to the ECJ , the EC 33 did not withdraw the commodity character of VAT , because it requires to be subject to the requirement of the tax, the taxpayer is a corporation , although not usual, which is not the case , because if is a practice that imported a radiological MRI system to be used by him in providing services .
In the RE 439796 , the company Claudino FF & Company Ltda . , Paraná , questioned the decision of the Court of that state ( TJ - PR ) in order to be valid ICMS on imports of goods for legal entities providing services . On the same ground the previous case , the Supreme upheld the appeal , reversing the decision of TJ Paraná and giving reason to the company .
conclusion
The trial was suspended on December 16, 2010 , when its rapporteur , Minister Joaquim Barbosa , said postponement . At that session, the Minister Dias Toffoli , who had seen the application process November 25, 2009 , presented his vote - view, which was eventually endorsed unanimously by the ministers .
By bringing today the process to its final assessment , the Minister Joaquim Barbosa said that there were only small differences in view - vote delivered by Minister Dias Toffoli and your point of view . He was referring primarily to the possibility of examination , these REs , the sufficiency of constitutional legislation to give density to general rules on tax matters and the rule matrix of the tax ( Article 155 , item II , and paragraph 2 , section IX , letter 'a ' , of the Federal Constitution ) .
According to the Minister Joaquim Barbosa , the rule matrix alone is insufficient. There should be general rules for the GST in order to provide stability and predictability to the incidence of the tax, even because it is state , being raised by 26 states and the Federal District and shared with more than 5,500 municipalities .
According to the minister , there are three conditions for the validity of the tax : the existence of jurisdiction , the exercise of those powers by the Union through a general tax on the exercise of jurisdiction by the States and the Federal District . Occurs , however , he said, that some federal agencies rushed and created arrays without the necessary foundation of validity , ie, consistent with the general law .
the cases
Thus, even as the Minister Joaquim Barbosa , Rio Grande do Sul had dismissed RE 474267 , because good resource object entered the country before December 17, 2002 , the date it was published Complementary Law 114/2002 , which in its Article 2 , paragraph 1 , item I , included among the subjects likely charging the tax on imports person or entity , " although it is not usual contributors of tax , whatever its purpose ."
Anyway , the minister said , although there were supplementary law of general standards and local legislation on the matter , would apply the rule that prohibits taxation before the start of the next financial year or within 90 days after publication of norm.
In the case of RE 439796 , good also entered the country before the issue of LC 114 . Therefore , in the same direction was the constitution invalid credit required by the government of Paraná .
FK / AD "
Access: 07.11.2013