Pedro Rezek Andery Altran
Lawyer at Marcos Martins Advogados
The Federal Regional Court of the 3rd Region has ruled that the IRPJ and CSLL levied on interest arising from the recognition of PIS and COFINS credits resulting from the exclusion of ICMS from their calculation bases should only be levied when the offset is ratified, at which point the legal and economic availability of the income is characterized, in accordance with the position defended by the taxpayer.
The Attorney General’s Office argued that the IRPJ and CSLL should be levied on the date on which the final and unappealable court decision recognizing the right to offset was certified, as this would be the moment when the legal and economic availability of the respective amounts would be established.
The ruling handed down by the Federal Court of Appeals for the 3rd Region was based on the fact that until the administrative decision approving the taxpayer’s claim is made, the amounts recognized by the court decision are not certain, liquid and enforceable.
This is because the court decision, handed down in a writ of mandamus filed by the taxpayer with the aim of having the right to exclude the ICMS amount from the PIS and COFINS calculation basis recognized, only declares the right to offset the taxes paid unduly.
At the end of the process, the taxpayer must submit a declaration of offsetting (DCOMP) on the Brazilian Federal Revenue Service system, through which it will request the use of the recognized credits and only after its approval will their legal or economic availability occur.
This ruling is very important for the legal certainty of this case as it establishes an important criterion to be respected by the IRS.
Marcos Martins Advogados puts its tax team at your disposal to answer any questions you may have about this or other tax-related issues.
