Dear all, good afternoon.
The 3rd Chamber of the Superior Chamber of Tax Appeals of the Administrative Council of Tax Appeals (Carf) allowed the appropriation of credits from PIS and Cofins on costs and expenses arising from the resale of fuels, products taxed under the single-phase regime. For the counselors, the revenues are subject to the non-cumulative regime. The issue, involving the company Idaza Distribuidora de Petróleo Ltda., was decided after the application of the pro-taxpayer tiebreaker.
The case returned to the agenda after a request for review by counselor Tatiana Midori Migiyama. In the single-phase system, contributions must be collected at only one pole of the production chain. In the case in question, the taxes were collected by the producer.
The taxpayer, after carrying out commercial operations for the resale of gasoline, diesel oil and alcohol for fuel purposes – subject to the single-phase regime – appropriated PIS and Cofins credits between 2006 and 2009, relating to costs and expenses of operations that are not subject to the single-phase regime, such as transportation and storage expenses inherent to the resale of products.
For the inspection, the company would not be entitled to the credit, since its revenues – resulting from the resale of products taxed under the single-phase regime – would be excluded from the non-cumulative regime, according to article 1, item IV, of laws no. 10,637/2002 and 10,833/2003.
The position of counselor Tatiana Midori Migiyama, who raised a divergence, was the winner. For her, the revenues in question should be analyzed based on Law No. 10,865/2004, which allowed crediting on costs and expenses.
Furthermore, the judge cited COSIT Consultation Solution No. 2018/2014, which defines that, although the appropriation of credit on the purchase of single-phase products for resale is prohibited, the discount of credits on costs and expenses linked to the products is permitted.
For the rapporteur, Rodrigo da Costa Pôssas, in commercial operations involving the resale of products taxed under the single-phase regime, there is no legal basis for the use of credits related to costs and expenses. The judge defends the application of article 1, item IV, of Law No. 10,637/2002.
The process is number 10183.721769/2010-06.