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STJ decides IPI shouldn’t be levied on freight

The founding standard of IPI, Law  4,502/64, provided in its original text (Article 14) that the base of calculation of the this tax would be understood as "the price of the transaction that came to course from the production establishment output, including all ancillary costs charged to the recipient or buyer, except when carrying separate, transportation and insurance under the conditions and limits defined in Regulation ". The basis of calculation provided in the aforementioned law is harmonized with the Article 47 of the National Tax Code (CTN), which is the ordinary law with legal status of complementary law which should dispose, among others, on the basis of calculation of taxes provided in the Constitution (Article 146, II, a, of the Constitution) - Legal provision which governs the tax calculation stating that this basis corresponds to the "value of the operation that generates the export of the goods", also without computing the freight costs.
It turns out that, with the enactment of Law 7,798/89 the founding standard of the IPI was changed to also understand in tax calculation basis the amounts related to freight and other ancillary expenses, which were not computed in its original wording and fleeing to the rule adopted by CTN.
Thus, it is evident that the inclusion of shipping charges in the IPI tax basis is shown as unconstitutional and illegal, since the definition of the tax calculation basis provided in the Constitution corresponds to matters reserved for supplementary law, as above. Moreover, the very CTN was welcomed by the  1998 Constitution  with legal status of a Complementary Law fitting to it complement (to it) the definition of the tax basis and cannot be changed in its (their) concepts but by other Complementary Law) and not by ordinary laws, such as Law 7798/89.
The actual wording of the Law 4,502/64 decouples the concept of transaction value from the concept of shipping, treating this as an ancillary expenditure and that does not compose the industrialization process, being mere subsequent expenditure relating only to the movement of the product, matter inherent in the ICMS.
Moreover, although the tax authorities defend the aforementioned legislative violations, the legal scenario shown is right and favourable to taxpayers proclaiming that "The change of Article 14 of Law 4502/64 to Article 15 of Law 7798/89 to include in the IPI tax base the shipping value carried by related company cannot stand in view of Article 47 of the National Tax Code, which defines as basis for calculating the tax the value of the transaction relating to the merchandise and should be understood as "transaction value" of the purchase agreement, which establishes the price fixed by the parties.” (REsp 383.208/PR, Rel. Ministro José Delgado, Primeira Turma, julgado em 18/04/2002, DJ 17/06/2002, p. 211).
So it is up to taxpayers to request the crediting of IPI unduly paid, according to the statute of limitations of five years, without the need to prove the transfer of the financial burden nor the consent of the one who took over in order that these requirements provided for in Article 166 of CTN are only valid in case of undue repetition, as Supreme Court’s (STJ′s) case law (REsp nº 469.616/RJ, e REsp nº 880555/SP e AgRg no REsp 1058309/SC). 
Importantly, the Supreme Court also understood within the terms of the mentioned crediting that it must be conducted with indexation according to the SELIC, and this subject was included as precedent target.

Jeane D’Arc Melo
Lawyer partner

Daniel Peixoto Figueiredo
Intern in Mota Fonseca e Advogados (Law firm)