[Free translation]
The final word on the validity of the increase of the Use Rate of the Foreign Trade System (SISCOMEX) by 500%, in 2011, will be given by the Federal Supreme Court (STF).
In a recent decision published on 10/13/2017, the First Panel of the Supreme Court upheld the complaint of an importing company in order to allow the processing of an extraordinary resource (RE) in which the issue is discussed on the screen.
The SISCOMEX Tax is a tax due by all importers upon registration of the Import Declaration (DI) in SISCOMEX. It was instituted by Law 9,716 / 98 in the amount of R $ 40.00 per DI (plus R $ 10.00 each new addition). Subsequently, the original value was changed by an act of the Minister of Finance (MF Ordinance No. 257/11), which increased it by 536%, and has since been required at the following levels: R $ 214.50 per Import Declaration , plus variable amounts with each new addition (under the terms of what today regulates IN RFB nº 1.158 / 11).
In this context, the main argument of the companies that carry out imports and that are obliged to collect the SISCOMEX Tax is that the adjustment implemented by Portaria MF nº 257/11 is invalid because only the Law could promote it. And that is precisely the heart of the matter that will be decided by the Supreme Court.
It should be noted that, although the judged opinion has so far established that the constitutionality of Taxa will be the subject of analysis by the highest Court of Justice of the country, the votes of the Ministers show their opinion and already indicate which way should be covered.
In time, the consolidated position of our Federal Regional Court (TRF4) has already been partially favorable to importing taxpayers for over a year. Both Classes that judge matters of tax law understand that the increase of the SISCOMEX Tax exceeded, in fact, the allowed. In this way, TRF4 judges are united in recognizing that importers have collected the tribute improperly.
All these judgments signal a strong tendency of the Judiciary to recognize the invalidity of the SISCOMEX Tax increase and, in practice, the existence of values ??to be repeated.
Lauffer Advocacia defends, from the outset, that the issue is analyzed from the constitutional point of view and will continue to work for the STF to judge the issue and declare the unconstitutionality of the increase in the SISCOMEX Tax, thereby ruling out any increase.
Let's wait for the next chapters.
