The Superior Court of Justice (STJ) concluded the judgment of Special Appeals 1.896.678 and 1.958.265, which questioned whether the State VAT due in Tax Substitution (ICMS-ST) should be included in the Contributions to PIS and COFINS calculation bases.

In the progressive tax substitution regime, the ICMS is collected in advance by the first taxpayer in the chain of production, circulation and consumption of a product. Generally, such collection is due by the industry or the importer.

The Ministers unanimously decided that the ICMS-ST should not be included in the basis for calculating the contribution to PIS and COFINS, applying the understanding held by the Supreme Court (STF) when judging the so-called “thesis of the century”; in which the STF ruled that the regular ICMS must be excluded from the PIS and COFINS calculation base, since the State VAT does not represent a revenue for the companies.

According to Reporting Minister Gurgel de Faria, taxpayers, whether in the tax substitution regime or not, occupy identical legal positions regarding submission to ICMS. The only distinction is in the collection mechanism. Thus, the same conclusion as the STF on the ICMS must be applied by the STJ to the ICMS-ST.

The STF had already analyzed the lawsuit and decided that this was not a constitutional issue, hence, the case was referred to the STJ for this decision, which has binding effects.

The decision has not yet been publicized; but the document should specify the quantification of the ICMS-ST to be excluded from the tax credits calculation base.

On a different matter involving the same taxes, the Superior Court of Justice recently decided to refer the Motion for Divergence (EREsp) no. 1.879.952/RS and 1.959.571/RS, as well as the Special Appeals (REsp) no. 2.072.621/SC and 2.075.758/ES for judgment as repetitive appeals. This means that the upcoming decision will have binding effects on other similar cases.

In this discussion, the right to PIS/COFINS tax credits by the substituted party on the values of ICMS-ST collected by the substitute party is being questioned. In other words, since the ICMS-ST was collected in the previous stage, the debate revolves around whether the purchaser of the goods, which is the substituted party, could consider this amount as the “value of the acquired asset” and, therefore, as the basis for calculating PIS and COFINS credits on such acquisitions.

The Brazilian Federal Revenue has the understanding that ICMS-ST should not generate PIS/COFINS tax credits because it is not taxed by the substitute party. The STJ panels differ on this possibility, and the recent decision to refer the cases aims to settle the discussion.

This newsletter was written by Felipe Omori and Matheus Barreto.

For additional information, contact our Tax team:
Henrique Lopes
Victor Polizelli
Álvaro Lucasechi 
José Flávio Pacheco
Juliana Nunes
Luís Flávio Neto
Felipe Omori

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