In a position favorable to companies, the Federal Revenue published a rule this Tuesday (20/12) in which it was made clear that ICMS must be included in the calculation of PIS and Cofins credits. The definition of Normative Instruction RFB 2.121/22, published this Tuesday (20/12) in the Official Gazette of the Union (DOU).
In article 171, section II, the normative instruction defines that ICMS levied on sales by the supplier may be included in the calculation of PIS and Cofins credits. For lawyers interviewed by JOTA, the rule seeks to guarantee legal certainty to taxpayers on the subject. In addition, it is an indication of how the courts will decide on this matter from now on.
The doubt about whether or not to include ICMS in the calculation of PIS and Cofins credits arose after the Supreme Federal Court (STF) ruled on RE 574706 (Theme 69) in 2017. In the case that became known as the “thesis of the century”, the STF defined that ICMS is not part of the PIS and Cofins calculation basis, since it is not incorporated into the taxpayer's assets and does not constitute revenue, but merely constitutes an entry into the cash flow and is destined for the public coffers.
From then on, once ICMS was excluded from the PIS and Cofins calculation basis, discussions began as to whether this same ICMS could be included in the calculation of contribution credits.
PGFN Opinion
The controversy had already been clarified by the National Treasury Attorney General's Office (PGFN) in Opinion SEI 14483/2021, dated September 24, 2021. In this document, the PGFN also understood that ICMS should be included in the calculation of PIS and Cofins credits. For the prosecutor's office, it is not possible, based solely on the content of the Supreme Court's ruling, to recalculate the credits determined in the entry transactions, “since the issue was not and could not have been discussed in the proceedings”.
For lawyer Adriana Stamato, partner in the tax area at Trench Rossi Watanabe, by aligning itself with the PGFN's position, the Federal Revenue Service seeks to guarantee legal security to taxpayers.
“The IRS is answering this question for taxpayers. Furthermore, it includes this provision in a normative instruction that consolidates the rules on PIS and Cofins and becomes a bedside book for those who work with these contributions,” says Adriana.
Tax specialist Cassiano Bernini, from Gaia Silva Gaede Advogados, says that the normative instruction also brings legal certainty to the Federal Revenue Service, since it avoids administrative and judicial disputes on the subject.
“There was a divergence of interpretation between taxpayers and the Federal Revenue Service. The normative instruction clearly states that ICMS can be included in the calculation of PIS and Cofins credits. The rule innovates in a positive way for the Revenue Service and taxpayers and, in addition to avoiding new discussions, it is an indication of how those still underway in the courts can be decided”, says Bernini.
Input concept
The possibility of including ICMS in the calculation of PIS and Cofins credits is just one of the points of IN RFB 2.121/22. The normative instruction has 811 articles and consolidates the rules on the calculation, collection, monitoring, collection and administration of PIS and Cofins and PIS-Importation and Cofins-Importation. With this, it revokes five other normative instructions that dealt with the subject and had been published between 2009 and 2022.
Among the provisions, Adriana highlights that article 176 of the normative instruction lists goods and services that can be considered inputs for the purposes of PIS and Cofins crediting. These include the goods or services necessary for the preparation of inputs in any previous stage of production of goods intended for sale or in the provision of services to third parties (input of the input).
Other possibilities concern goods or services that, even when used after the end of the production, manufacturing or service provision process, have their use resulting from legal imposition; and fuels and lubricants consumed in machines, equipment or vehicles responsible for any stage of the production or manufacturing process of goods or provision of services.