The 1st Panel of the Superior Court of Justice (STJ), unanimously, denied the wheat mill Tondo S/A the right to credit PIS and Cofins on the purchase of wheat. The understanding is that, at the stage of sale of wheat to this company, the collectibility of PIS and Cofins is suspended, according to article 9 of Law 10.925/2004. Therefore, in the next stage, the taxpayer is not entitled to credit on these contributions.
Article 9 of Law 10.925/2004 establishes, among other hypotheses, that PIS and Cofins should not be levied on the purchase of inputs made from cereal producers. The taxpayer argues, however, that according to the second paragraph, article 9, of Law 10.925/2004, the suspension of the collection of PIS and Cofins on the purchase of inputs should occur in the event of compliance with conditions established by the Federal Revenue Service. Among the conditions was the obligation of cereal producers to include on the invoice the expression “sale made with suspension of the PIS/Pasep Contribution and Cofins”.
In this specific case, the company claims that these conditions were not met by the cereal producers. In other words, the invoice did not include information about the suspension of contributions. Therefore, for the company, the conclusion is that PIS and Cofins were levied at the stage of the sale of wheat to Tondo S/A, which would give rise to the right to credit these contributions in the following stage.
At the STJ, however, the ministers concluded that the conditions imposed on the seller, such as highlighting the information on the invoice, are merely accessory obligations and do not alter the regime of suspension of the requirement for PIS and Cofins at the stage of sale of wheat from the cereal producer to the mill. In other words, the fact that the cereal producers did not highlight this information on the invoice does not necessarily mean that they paid the contributions.
Furthermore, the judges understood that, although there was no indication in the invoices about the suspension of PIS and Cofins, there are other requirements that would have to have been breached for the contributions to be required (and, therefore, the right to credit to be granted), which was not demonstrated.
The decision was made in REsp 1,436,544.