Tiago Aparecido da Silva
Lawyer at Marcos Martins Advogados
Even though the judgment of the Federal Supreme Court (RE 574.706/PR) confirmed the thesis on the exclusion of ICMS from the PIS and COFINS calculation basis, there are still some discussions, the main one being about which ICMS should be excluded, the detached one or the one actually paid.
Until the Federal Supreme Court presents its opinion on this point, there will be a tug-of-war between the tax authorities, who defend the exclusion of ICMS actually paid to the state, and the taxpayer, who believes that ICMS highlighted on the invoice should be excluded.
However, recently the Superior Court of Justice, in Special Appeal No. 1.822.251/PR, ruled on the matter and upheld the opinion of the Regional Court of the 4th Region that the ICMS to be excluded from the PIS and COFINS calculation basis is that which is highlighted on the invoice.
In its appeal, the National Treasury claimed that this exclusion contravened some legislation, however, in the Superior Court’s view, the STF’s understanding was applied in the case and, furthermore, it is not up to the STJ to settle the controversy in a Special Appeal regarding the interpretation of the constitution.
Marcos Martins Advogados puts its tax team at your disposal to answer any questions you may have.
