The Superior Court of Justice (STJ) has recently referred Theme 1,380 to its repetitive-appeals docket, raising new questions about the legality of the additional 1% Cofins-Importation surcharge under Article 8, paragraph 21, of Law No. 10,865/2004. This dispute particularly impacts goods subject to a zero-contribution rate.
Unlike Theme 1,047, decided by the Federal Supreme Court (STF), which upheld the constitutionality of the surcharge, the new case before the STJ seeks to determine the statutory enforceability of the charge when the contribution rate has been reduced to zero.
Cofins-Importation was established by Law No. 10,865/2004, which granted the Executive Branch authority to set differentiated rates and reduce them to zero for certain goods and services. Paragraph 21 of Article 8 later introduced the additional 1% surcharge on specific products. Over time, regulations such as Decree No. 6,426/2008 reduced the Cofins-Importation rate to zero for several products—notably in the chemical and pharmaceutical sectors—sparking controversy over whether the surcharge still applies when the base rate is eliminated.
The underlying cases prompting the referral arose from actions filed by pharmaceutical manufacturers (REsp 2,173,916/SP and EResp 2,090,133/SP) seeking to bar the 1% surcharge on zero-rated products. The Federal Regional Court of the 3rd Circuit (TRF-3) previously ruled against the companies, holding that the 1% surcharge is autonomous and therefore remains enforceable even when the main rate is reduced to zero.
Given the number of similar cases, the STJ designated the matter for the repetitive-appeals docket and stayed pending appeals until a uniform thesis is established.
The STJ will address only the statutory question: whether the surcharge still applies when the principal contribution is zero-rated. The ruling will be binding under the repetitive-appeals regime and may directly affect companies in the chemical, pharmaceutical, and healthcare sectors, which often rely on imported inputs benefiting from a zero rate.
The judgment of Theme 1,380 marks a decisive step in consolidating case law on Cofins-Importation. Even though the 1% surcharge expired on December 31, 2024, under Article 8, paragraph 21, of Law No. 10,865/2004, a finding of illegality could allow taxpayers to pursue judicial refunds of overpayments, subject to the applicable statute of limitations.
Glossary
Theme 1,380 (STJ) – Number assigned by the Superior Court of Justice to the repetitive-appeals topic addressing the legality of the additional 1% Cofins-Importation surcharge when the base contribution is zero-rated.
Theme 1,047 (STF) – Federal Supreme Court precedent that upheld the constitutionality of the 1% Cofins-Importation surcharge; constitutionality is not at issue before the STJ in Theme 1,380.
Contribution rate – The applicable percentage of the underlying Cofins-Importation contribution; in some cases reduced to zero by regulation.
Law No. 10,865/2004 – Federal statute that established Cofins-Importation and authorized differentiated or zero rates for certain goods and services.
Decree No. 6,426/2008 – Regulation that reduced the Cofins-Importation rate to zero for several products, notably in the chemical and pharmaceutical sectors.
Base rate – The principal Cofins-Importation rate before adding the 1% surcharge, whose reduction to zero triggered the dispute over the surcharge’s persistence.
REsp 2,173,916/SP – Special Appeal (Recurso Especial) filed by pharmaceutical manufacturers that helped prompt the STJ referral.
EResp 2,090,133/SP – Embargos de Divergência in Special Appeal used within the STJ to harmonize conflicting decisions and also part of the underlying cases.
Autonomous surcharge – The characterization that the 1% surcharge exists independently of the base rate, potentially allowing it to apply even at a zero rate.
Repetitive-appeals docket (STJ) – Procedure for issues with multiple similar cases whereby the STJ selects leading cases, stays related appeals, and sets a uniform thesis binding on lower courts.
