4/30/2021
The Supreme Court has decided, in the judgment of the extraordinary appeal n. 835818, that presumed credits from tax on the ICMS (state sales tax) do not integrate the federal contributions PIS and COFINS tax base.
The Nacional Treasury has argued that the presumed credits are a tax-advantage provided by the states, therefore, should be added in the base of other federal taxes. However, it was the dissenting opinion and was not accept by the majority.
The understanding of the Minister, Marco Aurelio, prevailed by the majority. He decided that presumed credits from ICMS are a tax burden supported and paid by the states. Therefore, the presumed credits must not be considered as an income. The Supreme Court has set the precedent: “Is not compatible with Constitution to incluse the presumed ICMS credits on the PIS and COFINS tax base”.
Despite the favorable decision, the Minister Gilmar Mendes requested the trial to be adjourned and removed from the plenary session. In this way, the trial will be restarted, and all the Ministers will have to decide again and there is possibility to change the opinion.
Our tax team is available to provide further information and guidance on these and other topics.
Coauthors: Thais Ribeiro Bernardes Casado and Augusto Périco
