There is no necessary correlation between the exclusion of ICMS from the PIS/Cofins calculation basis and its inclusion in the right to credit. The decision of the Supreme Federal Court on the subject also did not change the way these credits are calculated, which continue to comply with current legislation.
With this understanding, Judge Paulo Bueno de Azevedo, of the 2nd Federal Court of Mogi das Cruzes, granted, in a preliminary decision, the recognition of the right of a company to appropriate PIS and Cofins credits on the value of ICMS incident on operations of goods acquired and services taken, in a direction contrary to that determined by Provisional Measure 1159, published in January of this year by the federal government.
As the judge recalled, RE No. 574,706, which dealt with the issue and was judged by the Supreme Court with general repercussions, established that ICMS does not form the calculation basis for the purposes of levying PIS and Cofins. The decision, however, “at no point deals with the calculation basis for PIS/Cofins credits, much less with regard to the inclusion of ICMS in such calculation basis.”
“The PIS/Cofins credit did not take into account the actual amount paid in taxation. Therefore, there is no necessary correlation between the exclusion of ICMS from the PIS/Cofins calculation basis and its inclusion in the right to credit. ICMS paid on the acquisition of inputs continues to be a non-recoverable tax. Therefore, it can be seen, at least in this summary analysis, that the exclusion of ICMS from the PIS/Cofins credit basis violates non-cumulativeness.”
In the case under judgment, a São Paulo food company, a non-cumulative PIS and Cofins taxpayer, initially sought recognition in the 1st Federal Court of Mogi das Cruzes that the inclusion of ICMS in the calculation basis of the contribution was undue after March 16, 2017, the date stipulated by the Supreme Court when it decided the matter with general repercussions.
The company obtained a favorable decision, but in January of this year, the government enacted a provisional measure that once again limited, as of May 1st, the right of taxpayers to the ICMS portion of the PIS and Cofins credit base.
In its argument, the company states that “if it is subject to the effects of the MP, it implies a violation of res judicata and that the change in Laws No. 10,637/02 and 10,833/03 should have been made by means of a complementary law, and not by a provisional measure”.
For the judge of the 2nd Federal Court of Mogi das Cruzes, “values that do not constitute revenue or income cannot, therefore, be included in the calculation basis for PIS and Cofins”.
The company's defense was sponsored by lawyers Fernando Andrade Vieira and Felipe Mano Monteiro do Paço.
Click here to read the decision
Case 5001361-70.2023.4.03.6133
Source: https://www.conjur.com.br/2023-mai-29/juiz-libera-credito-piscofins-parcela-icms