Just as ICMS should not be included in the calculation basis for PIS and Cofins, these contributions should also not be included in their own calculation bases, as they do not make up the companies' revenue or gross income.
With this understanding, the 14th Federal Civil Court of São Paulo granted a company in the industrial plastics sector the right not to include the amount of PIS and Cofins in the calculation basis of its own contributions. It also ordered the compensation of amounts unduly paid in the last five years.
Judge Tatiana Pattaro Pereira applied the understanding established by the Federal Supreme Court in the “thesis of the century” — the exclusion of ICMS from the calculation basis of PIS and Cofins. The extension of this interpretation to similar hypotheses has already been adopted on other occasions, including by the Regional Federal Court of the 3rd Region itself.
According to lawyer Thais Souza da Silva, a tax specialist at the law firm Lopes & Castelo Sociedade de Advogados who represents the company, the understanding adopted by the STF should prevail, “since the reasoning adopted applies entirely”.
5003772-59.2021.4.03.6100
Source: https://www.conjur.com.br/2021-set-10/justica-federal-sp-exclui-pis-cofins-propria-base-calculo