By six votes to four, the 3rd Panel of the Carf Superior Chamber denied an appeal by the National Treasury, in process 16682.721329/2013-49, allowing the taxpayer to take PIS/Cofins credits on freight expenses in the resale of pharmaceutical products subject to the single-phase taxation regime.
This was the first time that the panel decided in favor of the taxpayer by majority on this issue. In November, there was a decision in favor of taking credits due to a tiebreaker in favor of the taxpayer, in process 15956.720244/2013-13, involving Drogavida Comercial de Drogas Ltda.
This time, the divergent understanding of counselor Tatiana Midori Migiyama prevailed, that, as it was a taxable event from 2007, the understandings of Consultation Solutions (SC) Cosit 323/2012 and 351/2008 were in force, favorable to crediting freight costs.
The judge also cited the Interpretative Declaratory Act (ADI) 4/2022 of the Federal Revenue Service, which provides that, in the event of a change in understanding in a consultation solution, the new guidance, if unfavorable to the author of the consultation, will only affect the generating facts that occur after the date of notification of the solution.
The understanding of the rapporteur, former councilor Luiz Eduardo de Oliveira Santos, who cited more recent regulations from the Federal Revenue Service contrary to the possibility of crediting, namely, SC Cosit 66/2021 and the Divergence Solution (SD) Cosit 2/2017, was defeated.
In the November decision that allowed the taking of credit, the debate among the councilors was different from what occurred today. At the time, the discussion revolved around the interpretation of article 3 of Laws 10.637/2022 and 10.833/2003. The prevailing understanding was that, although there is an express prohibition on taking PIS/Cofins credits on products subject to the single-phase regime, this prohibition does not extend to freight in the resale of these same products.