News

The 1st Section of the Brazilian Superior Court of Justice (STJ), in ruling on Special Appeals No. 2,119,311/SC, No. 2,143,866/SP, and No. 2,143,997/SP – submitted under Theme 1304 of the representative appeals system – ruled that ICMS, PIS, and COFINS cannot be excluded from the calculation basis of the Tax on Industrialized Products (IPI).

This conclusion is based on the interpretation of the concept of “transaction value” set forth in the National Tax Code and Law No. 4,502/1964. As the thesis was established under the representative appeals system, it is binding on lower courts.

The STJ’s Public Law panels had already been adopting a position against excluding these taxes. The Justice Rapporteur, Teodoro Silva Santos, emphasized that the legislation allows their inclusion in the IPI tax base, since all are levied under the so-called “gross-up” system (“cálculo por dentro”), meaning they are embedded in the final price of the product.

According to the Justice, excluding these amounts would artificially reconstruct the transaction value without legal basis. In his words, “the concept of transaction value, for IPI purposes, corresponds to

the total value of the transaction involving the exit of the goods from the industrial establishment, encompassing the taxes that make up the product’s price.”

Lastly, the Court rejected the attempt to apply by analogy the precedent set by the Federal Supreme Court (STF) in Theme 69. According to the panel, the taxable events and calculation bases in the two cases are different, with no equivalence that would justify extending that understanding.

BRZ Advogados’ Tax team remains available for further information.