New STJ decision guarantees IPI credit for inputs of non-taxed products
Recently, and unanimously, the 1st Panel of the Superior Court of Justice (STJ), in a binding ruling for the Judiciary (Theme No. 1247 of the Repetitive Appeals), decided that companies are entitled to claim IPI tax credits on the taxed acquisition of raw materials, intermediate products, and packaging materials ("inputs") used in the manufacturing of products that are exempt or not subject to IPI (“non-taxed” or “NT” products), based on Article 11 of Law No. 9.779/1999.
The decision reinforces (and gives binding effect to) a position already consolidated by the STJ since the judgment of EResp No. 1.213.143/RS, rendered on December 2, 2021. Furthermore, it provides legal certainty to the matter, stabilizing the case law on the subject. Up to this point, there has been no modulation (limitation) of the effects of the decision (and it is expected that there will not be, given the absence of any change in the court’s jurisprudence). However, the possibility of some restriction being introduced during the judgment of appeals filed by the Federal Government (National Treasury) cannot be ruled out.
The decision is not yet final (res judicata), and the National Treasury is expected to appeal. However, the favorable outcome for taxpayers is likely to be upheld, as it confirms the previous interpretation already adopted by the STJ in non-binding precedents, and because the issue does not involve constitutional matters that would justify intervention by the Federal Supreme Court.
In any case, manufacturers of IPI non-taxed products should revisit their bases of raw materials, intermediate products, and packaging materials used in their industrial processes (and on which the company claims IPI credits), in order to, depending on the amounts involved, bring the matter before the Judiciary. This is especially relevant to prevent the loss of credits due to the statute of limitations or a possible modulation of effects, given that the STJ's decision is not yet final or accepted by the National Treasury.
The Tax Law team at FAS is available to clarify any doubts regarding this matter and to assist taxpayers with whatever they may need.
