On this Tax Law newsletter you will find:
- STJ to rule on repetitive appeals regarding statute of limitations in customs violations
- Supreme Federal Court to rule on whether PIS/Cofins is levied on services provided in the Manaus free trade zone
- STF guarantees ICMS credit on deposit in state fund
- STJ expands delimitation of thesis that will be analyzed on PIS/Cofins on sales in the Manaus free trade zone
- STJ upholds IRPJ, CSLL, PIS and Cofins on Pert discounts
1. STJ to rule on repetitive appeals regarding statute of limitations in customs violations
The First Section of the Superior Court of Justice has decided to submit Special Appeals No. 2.417.578/SP and No. 2.147.583/SP to the system of repetitive appeals, so that the final decision should apply to all similar cases.
The issue under discussion is the statute of limitations provided for in article 1, paragraph 1, of Law No. 9,873/1999, which determines that administrative procedures that have been paralyzed for more than three years without any new development must be extinguished.
The controversy revolves around whether the statute of limitations also applies to customs infractions, or whether the provision only applies to general federal administrative proceedings.
2. Supreme Federal Court to rule on whether PIS/Cofins is levied on services provided in the Manaus free trade zone
On November 22 (Friday), the Federal Supreme Court began the analysis of the Appeal in Extraordinary Appeal 1.524.893, representative of Theme 1.363 of General Repercussion – with binding effects on all similar proceedings.
The dispute is whether PIS and Cofins are levied on revenues from services rendered to individuals and companies located in the Manaus Free Trade Zone.
The Reporting Justice, Luis Roberto Barroso, understood that the matter cannot be analyzed by the Federal Supreme Court, as it would have no constitutional nature, so that the analysis would fall to the STJ. The Rapporteur proposed the following thesis:
“The controversy over the levying of PIS and Cofins on revenues from the provision of services to individuals and companies in the Manaus Free Trade Zone is infra-constitutional.”
The other Justices are yet to present their votes. The trial is scheduled to end on Friday, November 29.
3. STF guarantees ICMS credit on deposit in state fund
The Federal Supreme Court has reinforced the right of companies to use ICMS credits on amounts deposited in state funds, ensuring compliance with the principle of non-cumulative taxation. This guarantee is related to funds such as the State Fiscal Balance Fund (FEEF) and the Temporary Budget Fund (FOT) in Rio de Janeiro, which require deposits equivalent to 10% of the tax incentives granted.
Although these funds were validated by the STF in 2023, the Court conditioned their legality on compliance with ICMS rules. In recent decisions, such as that of Justice Alexandre de Moraes, the right to ICMS credit was reaffirmed, in observation to the principle of non-cumulative taxation.
4. STJ expands delimitation of thesis that will be analyzed on PIS/Cofins on sales in the Manaus free trade zone
The 1st Section of the STJ unanimously decided to expand the analysis of the levying of PIS and Cofins on transactions carried out in the Manaus Free Trade Zone. In the judgment of REsps 2.093.052/AM and 2.093.050/AM, linked to Theme 1.239, new issues were incorporated into the debate, including the taxation of nationalized goods and services.
As a result, the trial should analyze the matter on: “whether the PIS and Cofins contributions are levied on revenues arising from sales of goods of national or nationalized origin, and from the provision of services, to individuals or legal entities within the Manaus Free Trade Zone.” There is still no prediction as to when the case will be decided.
5. STJ upholds IRPJ, CSLL, PIS and Cofins on Pert discounts
The Second Panel of the Superior Court of Justice unanimously ruled that the amounts corresponding to discounts on fines, interest and legal charges obtained through the Special Tax Regularization Program (Pert) are subject to IRPJ, CSLL, PIS and Cofins.
The companies appealed to the STJ claiming that these discounts do not constitute an increase in assets or turnover, which are the necessary grounds for these taxes to be levied. According to them, the amounts saved in the Pert only represent a reduction in liabilities and not an increase in revenue.
The reporting judge, Justice Afrânio Vilela, pointed out that the STJ is of the opinion that “any tax benefit that has a positive impact on the company’s profit must have an effect on the IRPJ, CSLL, PIS and Cofins calculation basis”.
