18 maio

ICMS on the basis of calculation of PIS and COFINS

URGENT: ICMS on the basis of calculation of PIS and COFINS

The STF last week began the trial of a bill with billionaire effects for the Federal Treasury. This is because, a taxpayer-friendly judgment could impact on a decrease in tax collection close to 20 billion reais. Such impact may exceed 100 billion reais if we consider the possibility of a refund of what has been collected in the last 5 years.

The thesis in question has been under discussion in the courts for more than 20 years and a precedent favorable to the STF companies. But when judged in 2014 it was established that it would only apply to the concrete case of the company Auto Americano Distribuidor de Peças.

Last week’s session, four ministers followed the vote of the rapporteur, Mrs Carmem Lúcia. The magistrate maintained her position in the precedent and stated that the value of the ICMS does not constitute income of the taxpayer – has as final destination to be transferred to the Public Treasury. The understanding was accompanied by Ministers Rosa Weber; Luiz Fux; Ricardo Lewandowski and Marco A. Mello, who preferred to advance their vote.

Initiated with general repercussion, the trial was suspended with a score of 5 x 3 in favor of the taxpayers. Minor Gilmar Mendes and Dean Celso de Mello are absent, who in a recent judgment voted in compliance with the taxpayers’ thesis. The trial is expected to resume on Wednesday. Of the current composition of the STF only CÁRMEN LÚCIA; CELSO DE MELLO; MARCO A. MELLO; RICARDO LEWANDOWSKI and GILMAR MENDES voted for that trial. Of the five, only Min. Gilmar Mendes voted against the taxpayers.

As the tendency is for Minister Gilmar Mendes to maintain the divergence of the precedent of 2014, the vote of the dean Minister Celso de Mello could define the dispute.

Finally, it is extremely important to point out that, in case the companies wanted to take advantage of a possible favorable decision resulting from the judgment to take place on Wednesday, it is necessary to adopt a specific judicial procedure, which has a deadline on this same date. March 15, 2017.