The 1st Panel of the 2nd Chamber of the 3rd Section of the Administrative Council of Tax Appeals (Carf) denied the possibility of crediting PIS and Cofins on inputs for the furniture and home appliance retailer. The panel unanimously understood that there is a legal prohibition against making these credits available to retail companies.
For the rapporteur, counselor Ricardo Sierra Fernandes, these credits are only possible in the provision of services or manufacture of goods, as provided for in item II, article three of laws 10637/02 and 10833/03.
“The company’s main activity is retail trade. It is clear that the appellant did not carry out any production or manufacturing activity, nor did it provide any services that would allow it to take out credit for inputs,” he said. “There is a legal prohibition on taking out credit for inputs for retailers,” he added.
In the appeal, the taxpayer claimed that the expenses with what he considers to be inputs are essential for the activity. However, the rapporteur concluded that there is “no assessment of relevance and essentiality” of the expenses, based on the premise that there is a prohibition on crediting to commercial companies. The criteria of essentiality and relevance for characterizing the concept of inputs were defined by the Superior Court of Justice (STJ) in REsp 1221170.
Counselor Tatiana Josefovicz Belisario said that the trade restriction violates equality, but that this would be a matter for the Supreme Federal Court (STF). “For example, in a large wholesaler, the logistics service performs exactly the same function as the logistics service of a producer who does the distribution, a manufacturer who does the distribution,” she said.
The process is 19311.720190/2015-94 and involves Móveis Esplanada, a retailer in the interior of São Paulo.