On May 3rd, 2018, the Federal Court of Rio Grande do Sul issued a ruling that allowed the exclusion of PIS and COFINS (turnover taxes) from their own calculation basis. The decision was based on RE 574.706 / PR, whereby the Supreme Federal Court (STF) decided to exclude the ICMS (state-level VAT) from the calculation basis of PIS and COFINS.

According to the vote, if the ICMS is not a part of the PIS and COFINS calculation basis (since it is not a part of the company’s gross revenues or its total income), for the same reason, PIS and COFINS should not be a part of their own calculation basis.

The decision declared that the inclusion of these taxes within their own calculation basis would be unconstitutional and illegal, since it would be a violation of art. 195, I, “b”, of the Federal Constitutional, and therefore art. 12, § 1, III and 5 of Decree No. 1598/77, which states that the concept of gross revenue includes taxes levied on it, was also declared unconstitutional. As a result, it was determined that the amounts of PIS and COFINS collected within its own calculation basis in the last five years should be reimbursed, as well as the unenforceability of their collection by Federal Tax Authorities henceforward.

Considering that applying this ruling in practice to other claims is plausible and that the prescriptive period for the recovery of values ​​is currently underway, it is worth evaluating the possibility of filing a lawsuit to prevent eventual loss of rights to recover these amounts.






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