Do imposto sobre produtos industrializados: estudo acerca da incidência na importação promovida por não contribuinte

Abstract

This discourse aims to, by a depth study of the Brazilian legislation, the jurisprudence and the case law, analyze the assessment of the national excise tax on production for sale called Imposto sobre Produtos Industrializados - IPI, a kind of value-added tax, on importations (art. 46, I, National Tax Law) promoted by non-taxpayers of the impost; enabling to check the real constitutionality and/or legality of taxation. According to art. 153, §3º, II, of the Brazilian Constitution, the IPI, even in importation, has to be non-cumulative, culling the tax amount due in every future manufacture of industrialized product for sale with the amount of tax paid in the previous output. In case of importation promoted by nonindustrial taxpayer, once there is no further manufacturing production cycle, the importer can’t proceed to the credit culling, being unavailable the non-cumulative technique. The principle of noncumulativity, although, once conveyed in the Brazilian Constitution by a full effectiveness norm, self-applicable, is mandatory, being a kind of condition for the validity of the tax assessment. Since its impossible to, in this situation, operationalize the principle (or technique) by the crediting system, it’s evident the violation to the norm of the art. 153, §3º, II, of the Brazilian Constitution. It’s important to inform, moreover, the existence of contrary opinions. These, although, can’t resist to a deep legal analysis.