By majority, the 6th Panel of the Regional Federal Court of the 3rd Region (TRF3) recognized the right of Atri Fiat and other dealerships, when acting as substitutes, to exclude the ICMS-ST amount from the PIS/Cofins calculation basis and authorized the offsetting of amounts unduly collected.
The companies argued that they were entitled to the credits, as they are independent of the incidence of the PIS/Cofins contribution on the amount of ICMS-ST — collected by the automaker in a previous stage. They also added that the amount of the state tax paid in advance constitutes the acquisition cost of the goods purchased and intended for resale. Read the full decision.
Defeated, the rapporteur, federal judge Diva Malerbi, and the summoned federal judge Otavio Port voted to dismiss the appeal. In her vote, the judge considered that the appealed decision is supported by consolidated jurisprudence in the Superior Court of Justice (STJ) and the issue is not identical to the judgment in the Federal Supreme Court (STF) of the “thesis of the century”, which excluded ICMS from the PIS/Cofins calculation base.
Federal Judge Souza Ribeiro ruled differently and dissented, which was supported by the votes of Federal Judges Johonsom Di Salvo and Nery Junior. According to Ribeiro, the Supreme Court made no distinction between direct and substitute taxpayers when establishing the thesis. He also stated that the STF partially accepted the statement of clarification, “to modulate the effects of the judgment, setting the date of the judgment session of March 15, 2017 as the time frame for applying the understanding established in RE 574,706, admitting the production of retroactive effects for the judicial and administrative actions filed until the judgment on the merits of the RE”.
Offspring of the 'thesis of the century'
Fernanda Lains Higashino, partner at Bueno Tax Lawyers, explained that the issue is a “offspring of the thesis of the century”, since ICMS-ST is nothing more than the common ICMS collected in advance. In view of this, “the rationale of the 'thesis of the century' also applies to the ST, precisely because the taxes are the same”.
The understanding, however, is not yet uniform. The 1st Section of the STJ recognized some of the special appeals as repetitive and determined the suspension of the actions in the second instance and/or founded in the Court itself involving the subject. The analysis of the matter will be the responsibility of the full court.