The trial of the Topic 1223 of Repetitive Appeals was scheduled for this Wednesday (11) by the First Section of the Superior Court of Justice (STJ), addressing the (il)legality of including PIS/COFINS in the calculation base of ICMS.
The Court ruled that the possible exclusion of PIS and COFINS from the ICMS calculation base would require express legal provision and decided on the impossibility of calculating the tax without including PIS/COFINS contributions in its calculation base.
The established thesis was: “The inclusion of PIS/COFINS in the ICMS calculation base complies with legality in cases where the calculation basis is the transaction value, as it constitutes an economic pass-through.”
The full text of the decision has not yet been made available. The ruling is binding on all judges and courts, but it may still be subject to motions for clarification by taxpayers, as well as an extraordinary appeal seeking to bring the matter before the STF under a constitutional perspective.
We will continue to monitor this issue and its developments in the Courts.
