By Tax Area

The 1st Panel of the STJ determined that taxpayers with IPI credits arising from the benefit established in Law No. 9.440/1997 shall be entitled to offset their debts related to any taxes and contributions within the scope of the Government. (REsp No. 1.804.942/PE).

The collegiate dismissed the Special Appeal filed by the National Treasury, which aimed to limit the use of IPI credits from a automakers by one of its factories, in the city of Goiana (PE), in the approximate amount of R$ 3 billion.

The IPI credit, subject matter of analysis by the STJ, was granted by Law No. 9.440/1997, which allowed automakers and automobile manufacturers located in the North, Northeast and Central-West regions of Brazil, to be credited with the tax as reimbursement of PIS and COFINS social contributions.

Between 1997 and 2017, the Federal Revenue Service issued several normative instructions providing for the possibility of offsetting and reimbursement of the presumed IPI credits. However, this provision ceased to exist as of Normative Instruction No. 1.717/2017, thus preventing taxpayers from taking advantage of the credit for reimbursement and reduction of other taxes, leading to the judicialization of the matter.

Minister Benedito Gonçalves, rapporteur of REsp No. 1.804.942/PE, highlighted that Article 74 of Law 9.430/1996 provides that the taxpayer determining the credit can use it to offset their own debts related to any taxes and contributions managed by the Government.

In this context, the latest decision of the STJ represents an important precedent favorable to taxpayers entitled to the benefit established by Law No. 9.440/1997, since it enables the offsetting of IPI credits with debts from other federal taxes, despite the absence of a normative instruction regulating the matter.