Substitute federal judge Rafael Minervino Bispo, of the 2nd Federal Court of Osasco, ruled that amounts related to the Selic rate received by a wholesale company as a result of undue repetition of payment, that is, the return of an amount paid unduly, should not be taxed by PIS and Cofins. The ruling, from the end of last month, was based on the ruling of the Supreme Federal Court (STF) on IRPJ and CSLL.
The judge applied the understanding defined by the Court in RE 1,063,187 (Theme 962 of general repercussion), in which the thesis was established: “The incidence of IRPJ and CSLL on amounts related to the Selic rate received due to the repetition of undue tax is unconstitutional”.
At the time, the STF ruled that the amounts related to Selic should not be considered an increase in assets, but a way of compensating for the undue collection of taxes, said Bispo.
For him, the same applies to PIS/Cofins. Selic cannot be considered an inflow of money, so it does not fit into the definition of gross revenue or turnover, the hypothesis for the incidence of contributions.
“Compensation for consequential damages does not constitute revenue and, consequently, cannot be covered by PIS and Cofins.” For this reason, he concluded that, “although the ruling [of the STF] was limited to the incidence of IRPJ and CSLL, as a result, it must also be applied to PIS and Cofins.”
Bispo ruled out the incidence of PIS/Cofins on amounts relating to the Selic rate, as well as IRPJ and CSLL, and declared the existence of the right to compensation or refund of the amount paid.
According to lawyer Fabiana Tentardini, from the firm Tentardini Advogados Associados and who defended the taxpayer in the case, the decision is relevant because the Union had been demanding the collection of taxes on amounts that exclusively represent the recovery of currency originating from legal proceedings that have already become final and binding, thus increasing the tax burden.
“We can say that the judgment on the merits was a great victory for the taxpayer, as it decided that the amounts related to the Selic rate received as a result of repeated tax overpayment should not be included in the collection of social contributions to PIS and Cofins. We won a battle, but we continue fighting to win the 'war',” he said.
She stated that the ruling opens the door to new debates on similar situations, including services that do not generate income for the taxpayer but for third parties, such as debit or credit card fees and fees retained by digital delivery platforms.
The case is being processed at the Federal Regional Court of the 3rd Region (TRF3) under number 5000476-65.2023.4.03.6130.