STJ inicia análise de conceito de insumo

STJ inicia análise de conceito de insumo

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  • STJ inicia análise de conceito de insumo

Por Beatriz Olivon

A 1ª Seção do Superior Tribunal de Justiça (STJ) suspendeu novamente o julgamento pelo qual definirá os tipos de insumos que podem gerar créditos de PIS e Cofins. O tema é de grande relevância para as empresas porque o uso de créditos pode reduzir o valor a se recolher de contribuições. Já para a União pode representar queda na arrecadação federal. Até o momento há três votos com diferentes propostas de conceito.

“Em termos financeiros certamente é o maior processo que tramita no STJ, algo em torno de R$ 50 bilhões, e a matéria é de grande complexidade jurídica”, afirmou o presidente da seção, ministro Herman Benjamin. O valor foi divulgado pela Procuradoria­-Geral da Fazenda Nacional (PGFN) em 2015 e representaria a queda de arrecadação naquele ano com uma eventual derrota da União.

No processo, a Anhambi Alimentos fabricante de ração animal, pede o uso de créditos com gastos com água, combustíveis, veículos, equipamentos de proteção individual, exames laboratoriais, materiais de limpeza, ferramentas, seguros sobre perdas em sua produção e fretes, entre outros.

O Fisco tem uma postura mais restritiva e defende que apenas os bens aplicados ou consumidos no processo de industrialização ou fabricação de mercadorias podem ser considerados insumos.

A discussão foi retomada ontem com o voto-­vista do ministro Og Fernandes. O magistrado discordou do relator, Napoleão Nunes Maia Filho, e defendeu a interpretação da Receita Federal sobre insumos prevista em instruções normativas que tratam da não cumulatividade das contribuições. Para ele, as instruções não são ilegais. Segundo ele, a interpretação mais flexível autorizaria uma ampla desoneração fiscal, que não foi a intenção do legislador.

Para o ministro, o legislador considerou os insumos de forma semelhante aos do aproveitamento de créditos do IPI na não cumulatividade. Em 2015, quando foi iniciada a análise, o relator votou de forma favorável aos contribuintes.

O entendimento sobre o tema está dividido. O presidente da 1ª Seção, ministro Herman Benjamin afirmou que a jurisprudência da 1ª Turma segue a linha do voto do ministro Og. Já na 2ª Turma, prevalece um precedente do ministro Mauro Campbell Marques, que expôs seu posicionamento, gerando debates na seção.

O ministro apresentou uma terceira via. Para ele, o entendimento da Receita, condizente com as regras do IPI, seria muito restritivo. Já a proposta do ministro Napoleão, na linha adotado para o Imposto de Renda, seria abrangente. O ministro afirmou que não basta o bem ou serviço ser necessário ao processo produtivo, mas ser essencial e nem todo custo ou despesa necessário ao funcionamento da empresa seria essencial ao processo produtivo.

O magistrado estabeleceu três critérios. O bem ou serviço deve ser usado na prestação dos serviços ou necessário para viabilizá-­la e não precisa ser consumido no processo produtivo. Além disso, o insumo deve ser essencial. Por isso, propôs que o processo retornasse à instância inferior para análise da essencialidade do que foi apontado como insumo.

Por causa da sugestão, a procuradora da Fazenda, Amanda de Souza, questionou se o processo continuaria sendo julgado como repetitivo. Os ministros afirmaram que isso poderá ser analisado ao fim do processo. O julgamento foi suspenso por um pedido de vista do ministro Benedito Gonçalves.

Fonte: Valor Econômico
Acesso em: 13 maio 2016

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