The First Section of the Superior Court of Justice (STJ), ruling under the repetitive appeals procedure, unanimously held that ICMS, PIS, and Cofins must be included in the calculation base of the Tax on Industrialized Products (IPI). This decision, now binding, must be observed by all lower courts, thereby strengthening the position of the National Treasury.
1. Background of the Controversy
The dispute was driven by industrial companies and importers seeking to exclude certain taxes from the IPI tax base, arguing by analogy with the so-called “landmark tax case” (Theme 69/STF), in which the Supreme Federal Court held that the inclusion of ICMS in the PIS/Cofins tax base was unconstitutional.
According to taxpayers, if ICMS does not constitute revenue for purposes of PIS/Cofins, it should likewise not compose the “transaction value” used as the IPI tax base, since such taxes would not represent the taxpayer’s own wealth, but rather transitory amounts passed on to the tax authorities.
2. STJ’s Reasoning
The reporting justice, Minister Teodoro Silva Santos, rejected the analogical application of Theme 69, stating that the taxable events and tax bases are distinct.
IPI, as provided in Article 47, II, “a,” of the National Tax Code (CTN), is levied on the “transaction value,” a concept that encompasses:
• the product price;
• freight;
• ancillary expenses; and
• taxes that form part of the price, including ICMS, PIS, and Cofins (Law No. 4,502/1964, Article 14, §1).
The First Section further emphasized that:
• there is no statutory provision authorizing the exclusion of these taxes from the IPI tax base;
• STJ case law has long consolidated this understanding, spanning several decades.
Accordingly, the Court concluded that the concept of “transaction value” is broad and includes all elements that make up the final price of the product.
3. Practical Consequences of the Decision
For Companies
• The current requirement is confirmed: IPI continues to be calculated on the total transaction value, including ICMS, PIS, and Cofins.
• Significant impact for industrial companies and importers, with the maintenance of a higher tax burden.
• Reduced likelihood of success in ongoing lawsuits, given the binding nature of the repetitive decision.
4. Possibility of Review by the STF
Although the STJ has taken a categorical stance, the matter may still reach the Supreme Federal Court (STF) if a constitutional violation is alleged, particularly regarding:
• the principle of ability to pay;
• the constitutional concept of revenue; and
• consistency with Theme 69.
For the time being, however, the pro-Treasury interpretation prevails, aligned with the literal wording of the CTN and infra-constitutional legislation.