The Superior Court of Justice (STJ) unanimously ruled that Oi may exclude from the calculation basis of PIS and Cofins amounts related to the price of interconnection and roaming paid to other telephone operators. This is the first ruling on the subject by the 1st Panel and may serve as a precedent for the sector.
The company claimed in the lawsuit that it became clear, with the judgment in the Federal Supreme Court (STF) of the so-called “thesis of the century”, on the exclusion of ICMS from the calculation of PIS and Cofins, that third-party revenue cannot form the basis of social contributions.
In this case, Oi claims that interconnection and roaming values should be excluded from the calculation because they are passed on to other companies by legal and contractual force – provided for in the General Telecommunications Law (nº 9.472, of 1997) and in resolutions of the National Telephony Agency (Anatel).
The National Treasury argues that these are revenues arising from the provision of services and do not belong to third parties. Therefore, they would be included in the revenue of the telephone company. Interconnection allows users of services from one network to communicate with those of others. And roaming is the amount paid by the consumer when making a call to another location outside the coverage area.
The decision of the 1st Panel was given in an appeal by the Treasury against a decision of the Regional Federal Court (TRF) of the 1st Region, based in the Federal District (REsp 159 9065). The case began to be judged in September. The rapporteur, Minister Regina Helena Costa, voted against the taxation.
In her vote, the minister cited a study prepared by the Economic Monitoring Secretariat in August on the mandatory interconnection, and stated that this taxation affects an environment regulated by the State and Anatel.
According to the rapporteur, elements that are not part of the revenue are not computed as revenue and are not included in the PIS and Cofins contribution base. Citing the STF precedent, she stated that the IRS's interpretation that interconnection and roaming revenues are part of financial revenue would not be appropriate.
Yesterday, the trial was resumed, with the dissenting vote of Justice Gurgel de Faria. He agreed with the rapporteur and said that, after the Supreme Court's ruling, there could be no other interpretation for this issue. The other members of the panel then voted in the same direction.
According to lawyer Tiago Conde, partner at Sacha Calmon Advogados, this ruling could also serve as a precedent for other sectors, such as the railway sector, which also receives revenue from third parties. “The railway that serves Minas Gerais, for example, is not the same as the one that serves Espírito Santo,” he explains.
The STJ decision brings stability, adds Conde, since “it is not fair for the company to bear the entire tax because when this amount is passed on to third parties it will also be taxed.” For him, “it is an important decision because the STJ recognizes that third-party revenue cannot be taxed simply because it enters the company’s cash flow.”
Lawyer Matheus Bueno, partner at Bueno & Castro Tax Lawyers, says that the thesis of the century reinforced the argument that has long been discussed in the sector. According to him, the Superior Chamber of the Administrative Council of Tax Appeals (Carf) had initially ruled in favor of the companies, but the case law changed and they ended up taking the discussion to the judiciary.
Bueno points out that other sectors that pass on amounts to third parties, such as credit cards, tourism and advertising, already had these amounts recognized by the IRS as non-taxable. “In the case of telecommunications companies, the IRS decided to charge them as if they were revenue, but the logic is the same,” he says.
Contacted by Valor, the press office of Oi and the Attorney General's Office of the National Treasury (PGFN) did not respond by the time this edition went to press.