The classification of the potential of environmental hazard is an activity of competence of the Ministry of the Environment, through the Brazilian Institute of Renewable Natural Resources – IBAMA. Products subject to registration with the Ministry of Agriculture, Livestock and Supply – MAPA – depend on this classification to obtain their respective records.
IBAMA’s PPA maintenance fee must be paid annually at the request of the interested party. The amount is in accordance with the class, ranging from R $ 8,669.38 to R $ 20,225.75 under the terms of INTERMINISTERIAL NO. 812, OF SEPTEMBER 29, 2015, published in the Official Gazette of the Union on 09/30/2015, pages. 17, 18 and 19.
In order to obtain such a classification of environmental hazard potential, it is an indispensable requirement to pay a fee, instituted by Law 9,960, dated January 28, 2000 (provided for in Annex VII, item III, subitem 4.3 and 4.4).
Under this Law, not only the classification of environmental hazard potential is subject to fee payment, but also the simple maintenance of hazardous environmental hazard classification depends on payment of the fee.
In other words, when the taxpayer requires the registration of his product, he must pay the fee for the provision of the public agency’s service to classify the environmental hazard potential of the same.
And, once this classification has been granted for the required product, under the terms of Law 9.960 / 2000, the taxpayer must also pay an annual periodicity fee to maintain the environmental hazard classification already granted.
That is, the initial fee payment is made for a classification of the product and, after the registration is granted, it is subject to the annual payment for the maintenance of such classification granted.
Let’s see what the Art has. 77 of the CTN:
“The fees charged by the Union, the States, the Federal District or the Municipalities, within the scope of their respective attributions, have as a generator the regular exercise of police power or the actual or potential use of a specific and divisible public service, provided to the taxpayer or made available to him. “(emphasis added)
The rate derived from the classification of the potential for environmental hazard is due to a service rendering by IBAMA, unquestionably.
However, there were doubts as to the rate for MAINTENANCE of classification of the Environmental Hazard Potential, since it is not characterized as a new service provider to the taxpayer. Maintaining a classification resulting from an analysis that has already been completed does not lead to a new service provided to the taxpayer and, therefore, some claim that it does not result in a new levy.
This fact, once there are doubts about the characterization of the provision of services in the institution of the rate of maintenance of environmental hazard potential, we proceed to analyze the other possible generating fact, namely: police power.
In accordance with art. 78 of the National Tax Code:
“Public police activity is the activity of the public administration which, by limiting or disciplining law, interest or freedom, regulates the practice of deed or de facto absolution, in the public interest concerning safety, hygiene, order, customs, the discipline of production and the market, the exercise of economic activities dependent on the concession or authorization of the Public Power, public tranquility or respect for property and individual or collective rights.
In other words, it is the police power of the body of organs and activities charged with supervising, controlling and stopping individual activities that are contrary to hygiene, health, morality, quiet, public comfort, and, even to urban ethics.
Therefore, it is not possible to envisage police power as a triggering factor for the institution of IBAMA’s rate of maintenance of environmental hazard potential, which is why the charge in question is more closely linked to the concept of tax, since it event generating a situation independent of any specific state activity, relative to the taxpayer, under the terms of art. 16 of the National Tax Code. Nevertheless, the General Law of the Union – AGU, defending the interests of IBAMA, obtained a favorable position in the legal action that went on the matter, which decided by the legality of the collection of the maintenance fee of the PPA, made its mandatory payment.