Pedro Rezek Andery Altran
Lawyer at Marcos Martins Advogados
The Federal Supreme Court, when ruling on RE. 596.832, which discussed the possibility of a refund of the difference paid in PIS and COFINS taxes collected under the tax substitution regime, ruled in favor of the taxpayer.
The PIS and COFINS tax substitution regime affects specific sectors defined by legislation, such as the sale of cigarettes, vehicles or fuels.
It establishes that a certain taxpayer, called a substitute, is responsible for collecting the tax from the companies in the production chain, called substitutes.
To calculate the tax, an estimated or presumed calculation basis is used, which is calculated by the substitute company using certain rules laid down in the legislation.
In certain cases, the estimated tax base may be higher than the actual tax base, i.e. it is as if the substituted company had paid too much tax, because the tax base used was not the one actually used in the resale of the products.
Thus, according to the STF, when the taxpayer (replaced company) is faced with this situation, it can claim the difference paid in PIS and COFINS contributions.
According to Reporting Justice Marco Aurélio, the calculation basis by estimate is provisional, and the accounts should be settled when the real value of the legal business is known.
Marcos Martins Advogados puts its tax team at your disposal for any questions you may have.
