By Tax Area
The Second Panel of the Superior Court of Justice (STJ) understood, when judging Special Appeal No. 1.987.675/SP, that the early repeal of the zero rate of PIS and Cofins on revenue from the retail sale of computer products, provided for in Lei do Bem (Law No. 11.196/2005), infringes Art. 178 of the National Tax Code (CTN). This provision establishes that the exemption granted for a certain period and under conditions cannot be repealed or amended by law before its regular expiry.
The purpose of the granting would be encouraging technological innovation, its production, and society's access to the products. In 2009, the zero rate was extended until 2014, and then until 2018. However, Law No. 13.241/2015 abolished the zero rate for retailers, a fact that became the subject matter of legal discussion.
In the specific case, the rapporteur Minister Herman Benjamin pointed out that, for the zero rate to apply, companies in the sector had to be subject to a specific production process and to the limitation of the sale price, which encumbers the benefit granted. Thus, the early repeal of this benefit would represent a violation of the principle of legal certainty and the acquired right in relation to taxpayers who have adapted to the Digital Inclusion Program to guarantee the application of the zero rate.
The First Panel of the STJ arrived at the same understanding when judging Special Appeal No. 1.988.364/RN, as the exemption granted by Lei do Bem should be extended until December 2018, but it was repealed three years earlier by MP 690/2015.
In short, it is relevant that the STJ has pacified the understanding in the sense of the unlawfulness of the early repeal of the PIS and Cofins exemption on retail sales of computer products, not only to honor the applicable fundamental legal precepts, but also to assure taxpayers and to society in general the right of incentivized access to information technology goods, as announced at the time.