The 2nd Panel of the Federal Supreme Court (STF) recognized the unconstitutionality of the increase in the Utilization Rate of the Integrated Foreign Trade System (Siscomex) brought about by Ministry of Finance Ordinance No. 257/11. With this understanding, the court upheld the right of the taxpayer to collect the fee based on the amounts in force prior to the issuance of the ordinance. The decision was reached in the judgment of Extraordinary Appeal (RE) No. 1095001.

The Siscomex utilization rate was established by Article 3 of Law No. 9,716/98, which established fixed amounts of R$ 30.00 per Import Declaration and R$ 10.00 for each addition of goods to the Import Declaration. After almost 13 years without any increase, Ministry of Finance Ordinance No. 257/11 increased the rate by 500%, a percentage significantly above officially recorded inflation rates.

In view of this, the taxpayers resorted to the Judiciary to demonstrate that the Siscomex rate increase was done through infra-legal normative acts, thereby violating the Tax Legality Principle. The objective was also to demonstrate that the increase had no effective correlation with operating costs and investments made in the system's outfitting, which indicates a misuse of purpose of the tax calculation basis.

In a judgment dated March 6, the 2nd Panel of the STF upheld the decision previously handed down by the reporting judge, Justice Dias Toffoli, who granted relief to the taxpayer's appeal on the following grounds: (i) the understanding adopted by the lower court of appeal “is not in line with the case law” of the STF; and (ii) it is prohibited to update via Executive Act the amounts established by law for the Siscomex rate at percentages higher than the official rates.

Although RE No. 1095001 does not constitute a precedent of mandatory compliance, we understand that the decision issued by the 2nd Panel is relevant, as it represents the first position by the STF on the discussion of the merits of the Siscomex rate. In addition, this understanding appears to be in line with the position of at least two justices of the Court's 1st Panel, which indicates a promising scenario for the taxpayer.

Although it was highlighted in the decision that the 1st Panel of the STF had allegedly already recognized the unconstitutionality of the increase, upon examining in more detail the ruling of RE No. 959274, one may note that the 1st Panel ruled only on the constitutional or infra-constitutional nature of the matter in order to allow or disallow the processing of an extraordinary appeal to the STF. However, in the debates held in that proceeding, some Justices of the 1st Panel already advanced their position that the increase is unconstitutional.

Justice Roberto Barrosos stressed that "a tax instituted by a law, Law No. 9.716/98, was increased via an ordinance, although that law does not even establish minimum limits for any delegation of tax oversight." For the Justice, because it is a rate, “the Constitution does not permit it to be excepted from the principle of legal reserve in tax matters."

In the same sense, Justice Marco Aurélio stressed that "the underlying discussion is of the greatest relevance because we have delegation regarding a tax, namely the rate. The agency itself, which would be the Ministry of Finance, has substantially increased, without there being any basis in law for this action, the tax."

The STF has a firm position to the effect that the Executive Power is safeguarded the discretion to monetarily update amounts at percentages that do not exceed official indexes.

In view of this, we may have the following scenarios: (i) the 1st Panel, upon deciding RE No. 1095001, aligns with the position of the 2nd Panel to the effect that the increase is unconstitutional and thus we will have a uniform understanding by both panels that make up the en banc Court; (ii) if there is divergence between the positions of the panels, the matter may be submitted to an en banc session by means of a motion to resolve divergence; and (iii) the matter is submitted to the Virtual En Banc Court of the STF to review the existence or lack thereof of general repercussion.