A debate that has been ongoing for years in Brazilian courts gained a new chapter this August. The 2nd Panel of the Superior Court of Justice (STJ) ruled on the legality of Normative Instruction (IN) 243/2002, which, among other things, addressed the application of the PRL-60 method for determining the import parameter price between companies within the same economic group.
The controversy established between taxpayers and the Union resides in knowing whether IN 243/02 exceeded its limit of merely regulating the original wording of article 18 of Law nº 9.430/96, since the rule issued by the Federal Revenue Service imposes that the profit margin (60%) must be applied directly to the percentage of participation of imported raw material in the finished product, considerably reducing the parameter price, thus disregarding the value added to products in national territory.
In October 2022, the 1st Panel of the Superior Court of Justice ruled in favor of taxpayers (REsp No. 511,736) and considered IN 243/02 illegal. The Union appealed to the Supreme Federal Court, but to date there has been no decision on the merits from the Constitutional Court.
As you can see, the debate is divided within the Superior Court of Justice (STJ), given that the 1st and 2nd Panels, which are responsible for adjudicating tax cases, have conflicting understandings on the same subject. Naturally, it will fall to the 1st Section of the Superior Court of Justice (STJ) to resolve the issue, possibly through the system of repetitive appeals.
Remember that the subject is also controversial in the second instance Courts, such as, for example, in the Federal Regional Court of the 3rd Region, where decisions favorable to taxpayers issued by the 4th Panel can be found, but also contrary understandings from the 6th Panel of the same Court.
The way things are going, it’s likely that the Supreme Federal Court will have the final say on the matter, but until that happens, a lot of water will have to pass under the bridge.
