The Superior Court of Justice (“STJ”) will decide whether ICMS can be included in the calculation of non-cumulative PIS and COFINS credits on acquisition transactions.
The (i)legality of the changes made by Law 14,592/2023 to the articles in art. 3, § 2, III, of Laws 10,637/2002 and 10,833/2003 should be analyzed.
The discussion, affected by the system of repetitive appeals of controversy (Theme No. 1.364), should be analyzed by the 1st Section of the STJ, with mandatory observance by the Federal Regional Courts.
Origin of the discussion: PIS and COFINS credits are calculated using the indirect subtractive method, calculated on certain expenses and costs linked to the activity, as defined in Laws 10637/02 and 10833/03.
Following the enactment of Provisional Measure No. 1.159/23, which was later converted into Law No. 14.592/23, Laws 10.637/2002 and 10.833/2003 were amended to prohibit the ICMS levied on acquisitions that generate the right to a credit from making up the amount of this credit.
The change was justified at the time as a systematic alignment with the exclusion of ICMS from the PIS and COFINS calculation basis as a result of the pronouncement of the Federal Supreme Court (“STF”) on the subject when it ruled on Theme No. 69.
Grounds for the argument: Article 3(1) of Laws 10637/02 and 10833/03 expressly states that the amount of the credits must be calculated on the value of the items purchased, so that the ICMS amount should not be excluded from the calculation.
Even though the non-cumulative PIS and COFINS system can be changed by law, the rules must be consistent with the system’s premises, which did not happen with the enactment of Provisional Measure No. 1,159/23 and its conversion into Law No. 14,592/23.
Furthermore, the fact that the STF has ruled to exclude ICMS from the PIS and COFINS tax base does not allow for restrictions on the calculation of ICMS credits, precisely because of the indirect subtractive method adopted by the legislator when establishing the non-cumulative system for these contributions.
ICMS, therefore, can perfectly well be excluded from the calculation basis of the aforementioned taxes and still make up the value of your credits.
Our office is closely following the news on the subject and is available for any clarifications.
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