The 1st section of the STJ recognized the illegality of collection charges for the provision and sealing of IPI control established by Decree Law 1437/75. For the collegiate, because it is a tribute, reimbursement of values ​​requires a law to be instituted.

In a judgment of a repetitive appeal – item 761 -, the college established a thesis that the “unenforceability of reimbursement of costs and other charges for the supply of IPI control stamps, instituted by DL 1,437 / 1975, which, although called prior reimbursement, is tribute of the kind fee of police power, so that there is form vice in the institution of this tribute by infralegal norm”.

Special resource

A wine-producing company filed a special appeal with the STJ against the judgment of the TRF of the 3rd region. The Regional Court had considered that the charge for the preparation and supply of stamps established by the decree-law constitutes reimbursement to the public coffers, and has no legal nature of rate or public price.

When analyzing the special appeal in the STJ, the rapporteur, Minister Napoleão Nunes Maia Filho understood that, in this case, it applies strictly to the strict tax legality.

For the minister, the fundamental difference between principal obligation and ancillary tax obligation is the nature of the benefit due to the State. According to the rapporteur, while the main one presupposes the delivery of money, the accessory is of a utilitarian nature.

Minister Napoleon further explained that, although the tax authorities may impose certain accessory obligations on the taxpayer by means of non-judicial acts, “the same does not occur within the scope of the taxes, which must comply with the rule of strict tax law” item IV, of the CTN.

Consequently, article 3 of Decree-Law 1,437 / 75, “imposing a real tax on the acquisition of IPI control stamps, affects a formal defect”, said the rapporteur.

Napoleão explained that the amounts required as compensation are derived from the exercise of fiscal powers of the tax administration, “which requires the acquisition of the stamps as a mechanism to ensure the collection of the IPI, setting the collection as a tax of the species rate. police power”.

Source: Migalhas