Pedro Rezek Andery Altran
Lawyer at Marcos Martins Advogados
The Federal Supreme Court has ruled that it is unconstitutional to demand PIS and COFINS on presumed ICMS credits.
Presumptive credits are benefits offered by states with the aim of encouraging a certain sector, generating a reduction in tax expenditure. For example, states grant presumed ICMS credits on imports, even though the tax was not paid in the previous transaction, the taxpayer is granted a presumed ICMS credit.
Because the amount was a “gift” from the state to the taxpayer, the Federal Government levied PIS and COFINS, as it considered the amount to be turnover for the company.
The discussion reached the STF, which recently ruled that the levying of contributions on this credit was unconstitutional, so that the following thesis was suggested: “The inclusion of presumed credits from the Tax on the Circulation of Goods and Services (ICMS) in the COFINS and PIS tax bases is incompatible with the Federal Constitution”.
The judgment has not yet been finalized, but six STF Justices, out of a total of eleven, have already voted in favor of the taxpayer.
Marcos Martins Advogados has made its tax team available to answer any questions on the subject.
