The 1st Panel of the 4th Chamber of the 3rd Section of the Administrative Council for Tax Appeals (Carf) decided that gold acquired from a financial institution does not generate PIS/Cofins credits, even if it is subsequently incorporated into the production process as an input. The score was six votes to two against the taxpayer's appeal.
The thesis of the rapporteur, counselor Ronaldo Souza Dias, prevailed, stating that the revenue obtained from the sale of gold as a financial asset is not subject to PIS/Cofins and, therefore, the item does not generate the right to credit related to these contributions, even if it was used as an input.
The case reached Carf after the IRS denied the company, which works in purifying gold for industrial use, the right to claim credit for the expenses of acquiring the metal from a financial institution that distributes securities and bonds (DTVM).
Attorney Natanael Martins, representing the taxpayer, sought to refute in oral arguments the tax authorities' argument that gold as a financial asset is not subject to PIS and Cofins taxation. “It is said that there was no PIS/Cofins collection on gold as a financial asset. Its revenue [gold] makes up the financial intermediation revenue [of the institution] and, when it makes up the revenue, [gold] is subject to PIS and Cofins,” he argued.
The rapporteur, however, stated that although financial institutions are PIS and Cofins contributors, they are subject to the cumulative regime, with only service revenues forming part of the calculation basis for contributions. The judge highlighted that revenues obtained from the sale of gold itself are not subject to PIS and Cofins taxation.
Councilor Leonardo Branco disagreed. For him, the fact that financial institutions are subject to a different regime is irrelevant for crediting. “[The regime] can be Simples Nacional, Lucro Presumido, Lucro Real. What we are looking for here is whether or not there is a previous taxed transaction. This is what grants PIS and Cofins credit,” he stated.
The judge was accompanied by counselor Fernanda Kotzias. The other members of the panel, however, fully supported the rapporteur's vote. The result was replicated for another 35 cases involving the same taxpayer.
The process is number 10875.905375/2011-93.