The counselors of the 3rd Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) understood that PIS and Cofins are not levied on the presumed ICMS credit, as it does not constitute gross revenue. The decision was made by the tiebreaker in favor of the taxpayer.
In the infraction reports, the inspection found that revenues related to presumed ICMS credits, which are considered as investment subsidies, had not been included in the PIS/Pasep and Cofins calculation basis. The IRS understood that the taxpayer Roche Diagnostica Brasil Ltda. did not account for the amounts in the tax incentive reserve – a requirement to exclude the incentive from the calculation basis for contributions – and therefore concluded that the tax benefit received would be characterized as a subsidy for costs, in accordance with Normative Opinion CST No. 112/78, constituting taxable revenue for contributions.
“The conditions that the company had to meet to be eligible for the incentive that led it to open the unit in Santa Catarina are exhaustive,” said lawyer Eduardo Martinelli Carvalho, in oral arguments.
The conditions include creating a branch in Santa Catarina, using the state structure for its foreign trade operations, committing to a minimum annual turnover, and also contributing monthly to funds for sustainable social and economic development and support for scientific and technological research in the state. The argument was that this was an investment subsidy, not subject to contributions.
The rapporteur, counselor Vanessa Cecconello, understood that “the ICMS credits granted by the government of the state of Santa Catarina do not constitute gross revenue because they are not granted without reservations or conditions”, ruling out the hypothesis of the incidence of PIS and Cofins.
Furthermore, the judge cited a decision by the STJ which understood that presumed ICMS credit values do not have the nature of revenue, but rather of cost recovery in the form of tax incentives, granted by the state, so that they do not form part of the calculation basis for the required contributions.
Counselor Luiz Eduardo de Oliveira Santos raised a divergence because the report did not include “the allocation of the subsidy amount to the tax incentive reserve, as provided for in article 195º A of Law nº 6404/76, which I understand to be a necessary condition for non-taxation, as it guarantees the impossibility of distributing the amounts and their effective control over time, in accordance with laws nº 11941/19 and 12973/14, in force in the assessment periods under analysis”.
The process is 10314.722529/2016-73.