Alana Dahrouj
Lawyer at Marcos Martins Advogados
On November 13, the Supreme Court ruled on the Motion for Clarification in the Special Appeal on the discussion of the exclusion of ICMS from the PIS and COFINS tax base.
The opinion was consolidated in the sense that the ICMS to be excluded from the PIS and COFINS calculation basis is the ICMS highlighted on the outgoing invoices.
The issue of modulation of the effects of the decision was also defined, meaning that the exclusion of ICMS takes effect from March 15, 2017, the date on which the STF established this understanding.
In practice, there are two important scenarios: companies that filed suit before March 2017 will be entitled to a refund for the last 60 months preceding the filing. In the case where the company chose not to file the lawsuit, it will have the right to request a refund of the amounts overpaid from April 2017 until now.
Another important point to note is that for this new rule to be applied automatically to all companies, a whole procedure involving the National Treasury Attorney’s Office and the Ministry of Economy is required, which makes this possibility a little more time-consuming.
For this reason, the best alternative at the moment for a company to take advantage of the fact that PIS and COFINS have been paid excluding ICMS and to be able to recover the amounts unduly paid is to file a lawsuit.
Marcos Martins Advogados makes its tax team available to answer any questions on the subject.
