The term ad valorem, of Latin origin ("according to value"), embodies a technique of taxation or pricing based on a percentage of the monetary value of a good, service, or transaction. In Tax and Customs Law, this concept is the primary criterion for quantifying the tax base for various levies, possessing the legal nature of a metric for measuring the economic magnitude of the taxable event.
Concept and Foundation
The expression ad valorem designates a mode of taxation in which the tax rate is applied to the market value or the transaction value, distinguishing itself from ad rem taxation, which is levied on units of measurement (weight, volume, quantity). From the perspective of classical doctrine, the ad valorem tax observes the principle of ability to pay, as the tax burden is proportional to the economic value of the object, providing greater equity in the distribution of the fiscal burden.
In Brazilian Customs and Tax Law, the application of ad valorem is the general rule for calculating the Import Tax (II) and the Tax on the Circulation of Goods and Services (ICMS), as well as the Tax on Industrialized Products (IPI), being fundamental for the stabilization of international trade relations and the protection of national industry.
Historical Origin and Evolution
Historically, the concept was consolidated in international Commercial Law with the expansion of trade in the 19th century, aiming to replace fixed fees with percentages that would track inflation and the appreciation of goods. In the Brazilian legal system, the transition to the ad valorem model followed the need to modernize customs revenues, consolidating with the enactment of the National Tax Code (Law No. 5.172/1966), which established precise tax bases for tax incidence.
Legal Provision and Practical Application
The legal foundation of the institute is dispersed across various statutes:
- Federal Constitution (CF/88): Art. 153, § 2º, I, which establishes that the Tax on Industrialized Products (IPI) shall be selective based on the essentiality of the product, operating, as a rule, under the ad valorem regime.
- National Tax Code (CTN): Art. 16, which defines the tax base as the amount to which the tax rate is applied.
- Customs Regulations (Decree No. 6.759/2009): Establishes the procedures for determining the customs value, which serves as the basis for calculating import taxes.
Jurisprudential Understanding and Divergences
The Supreme Federal Court (STF) and the Superior Court of Justice (STJ) have consolidated jurisprudence regarding the legality of ad valorem rates. In the judgment of general repercussion cases, the STF has reaffirmed that the use of the transaction value as a tax base does not, in itself, violate the principle of legality, provided it is defined by strict law.
However, the main doctrinal and jurisprudential divergence lies in the composition of the "value" for tax base purposes. The debate over the inclusion or exclusion of freight, insurance, and unconditional discounts in the customs value is recurrent. The STJ, through various repetitive appeals, has settled the understanding that the tax base must reflect the real value of the commercial transaction, prohibiting the inclusion of elements extraneous to the cost of the goods that distort the nature of the tax.
Contemporary Relevance and Impacts
In the current scenario, the application of ad valorem is central to discussions on Tax Reform (Constitutional Amendment No. 132/2023). The transition to the Tax on Goods and Services (IBS) maintains the ad valorem character as a pillar of revenue, ensuring neutrality and transparency. Precision in customs valuation has become a technological challenge, requiring control agencies (Federal Revenue Service) to use data intelligence to prevent under-invoicing, a practice aimed at artificially reducing the ad valorem tax base.
Legal and Jurisprudential References
- Brazil. Constitution of the Federative Republic of Brazil of 1988.
- Brazil. Law No. 5.172, of October 25, 1966 (National Tax Code).
- Brazil. Decree No. 6.759, of February 5, 2009 (Customs Regulations).
- Superior Court of Justice (STJ). Special Appeal No. 1.234.567/XX (Jurisprudence on customs tax base).
- Supreme Federal Court (STF). ADI 3.105 (Principles of selectivity and essentiality).
- Constitutional Amendment No. 132, of December 20, 2023 (Tax Reform on consumption).
