5/2/2022
In a recent decision rendered in the Process 10314.724116/2015-42, the 3rd Panel of the Superior Chamber of CARF understood that the presumed ICMS credits is included in PIS and COFINS tax base. Infa this regard, the CARF board members understood that the presumed ICMS credits represent a subsidy for funding that constitutes part of the income of the legal entity and, therefore, are part of the PIS and COFINS tax basis under the non-cumulative regime.
This decision differs from the previous understanding delivered by the Lower Chamber in the same process, discussed on the November 28th, 2018, in which, by unanimous vote, removed the tax requirement with regard to the presumed ICMS credits that were part of the tax basis of PIS and COFINS.
In the same direction, the Federal Supreme Court, with recognized general repercussion (Theme n. 834) and with a current majority of votes in favor of the taxpayer, discusses at the presente moment the possibility of excluding from the tax basis of PIS and COFINS the presumed credits of the Tax on the Circulation of Goods and Services – ICMS granted by the States and the Federal District.
Appreciating the Theme 843, the majority of votes formed until now followed the presiding judge’s understanding, Minister Marco Aurélio, in the sense that presumed credits reveal a waiver tax whose effect practical is the reduction of the tax due. There is no acquisition of availability to signal contributory capacity, but simple cost reduction or reimbursement. However, the judgement will be restarted due to Minister’s Gilmar Mendes requirement for a highlight on the case.
Faced with this scenario, the taxpayer who has presumed ICMS credits, current or past years – of the last 5 years –, has the possibility, by means of a legal action, to terminate the collection and even request the refund of the payment, despite the recente unfavorable outcome delivered by CARF. However, with the highlight request there is the possibility of modulation of effects, – as in theme 69, except for the taxpayer who questioned the matter in court before the conclusion of the judgment – which impacts on its application on time.
Our Tax team is available to provide further information and guidance on these and other topics.
Coauthors: Enrico Sarti, Wendell Rodolfo dos Santos and Ingrid Soares Teixeira
