02/12/2024
n a session held on November 12, 2024, the 1st Panel of the Superior Court of Justice (STJ) ruled on REsp 2.128.785, determining that the ICMS tax differential (DIFAL) does not compose the calculation bases for PIS and COFINS contributions.
The issue regarding the exclusion of ICMS-DIFAL from the PIS and COFINS tax bases had previously caused divergence among higher courts. On the one hand, the Federal Supreme Court (STF) had issued rulings suggesting that the matter involved the analysis of infra-constitutional legislation, making the STJ the competent court to address the issue. On the other hand, certain STJ decisions had argued that the case depended on constitutional analysis, which falls exclusively under the STF’s jurisdiction.
Thus, the decision by the 1st Panel of the STJ marks progress toward the harmonization of legal interpretations and provides greater legal certainty for taxpayers, particularly companies engaging in interstate transactions, which are potentially subject to ICMS-DIFAL when conducted with end consumers.
Additionally, it is worth highlighting that Minister Regina Helena Costa, the rapporteur for REsp 2.128.785, emphasized during the ruling that the adopted position was based on the reasoning established in Topic 69, decided by the STF in March 2017. In that ruling, the STF upheld the thesis that “ICMS does not form part of the calculation base for the PIS and COFINS contributions.”
With this recent decision in REsp 2.128.785, there is an expectation of consolidating the understanding that ICMS-DIFAL, like ICMS itself, should be excluded from the calculation bases of PIS and COFINS.
Our tax team is available to provide clarification and guidance on potential collective lawsuits related to the topic discussed.
Co-authored by: Thais Ribeiro Bernardes Casado and Maria Eduarda Moreira Lima Novaes
