Alana Aiche do Carmo Dahrouj
Lawyer at Marcos Martins Advogados
The Federal Supreme Court has started to rule on an issue involving the exclusion of ICMS from the calculation basis of the Social Security Contribution on Gross Revenue – CPRB, with recognized general repercussion.
The issue was brought before the STF as a development of the thesis established by the court to the effect that ICMS should not be included in the PIS and COFINS calculation basis, since it does not form part of the concept of gross revenue.
The Federal Government argues that because the CPRB is an optional tax benefit, it has its own rules for the taxpayer who adopts it, and that because of the provision contained in Law No. 12,973/2014, the taxes levied on it should be part of the calculation basis.
Ruling in favor of excluding the ICMS, Reporting Justice Marco Aurélio cast his vote stating that the ICMS is merely a temporary entry in the company’s accounts, and its inclusion in the Contribution’s calculation base is unconstitutional, followed by Justices Ricardo Lewansowski and Cármen Lúcia.
On the other hand, Justice Alexandre de Moraes, Justice Edson Fachin and Justice Gilmar Mendes voted against the thesis that benefits taxpayers.
It is to be hoped that the same line adopted regarding the exclusion of ICMS from the PIS and COFINS tax base will be maintained, and that the inclusion of ICMS in the CPRB tax base will also be ruled out, as it is an illegitimate charge, since it does not effectively reveal taxable wealth.
Marcos Martins Advogados puts its tax team at your disposal for further clarification on the subject.
