The SUPREME court decides that the immunity from taxation amounted to the export of goods by way of trading companies in

In a unanimous decision, the Supreme Federal Court (STF) ruled that the export indirectly as a result of products is carried out by means of the trading companies, which act as an intermediate) is subject to the payment of social security contributions. The question has been completed at the plenary session this Wednesday (12), and in the judgment of the Direct Action of Unconstitutionality (ADI) 4735, and the Extraordinary Appeal (RE) 759244.

The Court provided the following thesis of the "general effect" (The theme 674): “The standard imunizante contained in (I) of the paragraph 2 of article 149 of the Constitution of the Republic of access to the income generated by the operations, and indirect export, in which there are participation in the negotiation of the society is to export the " intermediate”. The immunity provided for in the constitutional clause provides that the social security contributions and assistance in the economic domain is not levied on the income generated by exports.

Last week, the Court began the trial, the set of processes, with the presentation of the report of the ministers, Alexandre de Moraes, the AGENCY, and Edson Fachin, in RE. We were then taken to the oral submissions of the parties concerned. Today, the speakers gave their votes to the origin of the ADDITION to the declaration of the unconstitutionality of the two devices, on the Normative 971/2009 of the Secretariat of the Federal Revenue of Brazil, which limited the immunity from taxation – as well as the success of the RE-reform of the decision-making of the Federal Regional Court of the 3rd Region that you understand incabível the application of this benefit.

Immunity to the x-waiver

Be responsible for reporting to the AGENCY, the prime minister, Alexandre de Moraes, it was observed that the case deals with the interpretation of the rule of immunity from prosecution, which has the constitutional provision, and no waiver, which is a matter for sub. According to him, the interpretation is different for each case.

In your rapporteur's view, there should not be an obstacle to the challenge to exports indirectly. He said that it is not possible to make a difference in tax between direct sales, outside sales, and indirect trade in the domestic market between the producer and the seller, or of the constitution of the larger firms in the export market. According to the speaker of the house sales, which are aimed at the overseas market holds, in essence, its own exports, and that is the fact that they occur within the country's territory and from the brazilian does not take away from its meaning in the idea of the export. As a result, such actions can be considered as a domestic supply, for the purpose of taxation.

The intent of the Constitution

The prime minister, Alexandre de Moraes, pointed out that it is the intention of the legislator's constituency to establish the immunity he was exempt, the burden of paying the tax on business transactions involving the sale to the outside world. This is because of tax that the whole chain is built, makes the product more expensive and less competitive abroad, and the promotion of immunity from taxation and contributes to the generation of foreign exchange, and the development of the country's products. “The taxation of exaggerated as it would for these products in the international market,” he said.

According to the rapporteur for the agency, which does not try to give a broader interpretation to expand the rules are not laid down, as the Constitution provides for the export, directly or indirectly, for the purpose of protecting domestic product in the outdoors, without the benefit of large-scale producers at the expense of a minor, in violation of the free market. “There is, I think, reasonable to exclude from the constitutional immunity of the export, indirect,” he said. “Does it matter if the final destination is an export because the country benefits from externally of the balance of trade, in-house, with the generation of employment and income for small-scale producers”.

The guarantee of an object

In brief, the vote, the prime minister Edson Fachin understood that the operations of the export, indirect, that are covered by the rule that the constitutional right of immunity from taxation. “The exemption of the taxes that affect the price of the goods and services should be structured in a format that is intended to be a guarantee of an object, and not on the taxpayer's tax liability,” he said, highlighting the nature and aims to challenge the tax.

The prime minister welcomed the arguments contained in the special appeal because it believes that they are in accordance with the constitutional rules on the matter. Thus, it declined to grant the RE-order for a reform of the decision-making of the TRF3 and is based on the notion of exações based on the restrictions provided for in article 245, paragraph 1 and 2 of the ordinance 3/2005 of the Department of Revenue, Social security, and the export of sugar and alcohol are made by means of the trading companies.