Fábio Bernardo
Lawyer at Marcos Martins Advogados
The STF ruling on the exclusion of ICMS from the PIS/COFINS tax base has given new impetus to a series of tax theses defended by taxpayers in order to recover unduly paid taxes, the so-called “puppy theses”. One of these theses is the exclusion, by the substituted taxpayer, of the ICMS-ST from the PIS and COFINS calculation basis.
The ICMS tax substitution system consists of the tax being paid by a different taxpayer (substitute) from the one that carries out the sale of goods (substituted).
The substitute taxpayer, usually the one at the beginning of the production chain, collects in advance the ICMS that would have been due at a later date by the taxpayers further along in the cycle of circulation of goods. This is what happens, for example, with car dealerships, since the ICMS that would be due from them is already collected in advance by the automakers.
Recently, the Federal Regional Court of the 3rd Region recognized the right of several dealerships to exclude ICMS-ST from the PIS and COFINS calculation base. The court considered that, when ruling on the thesis of excluding ICMS from the PIS/COFINS base, the so-called “thesis of the century”, the STF made no distinction between the direct taxpayer and the taxpayer in the tax substitution situation, so that both would be entitled to the exclusion of the state tax from the PIS and COFINS calculation base.
We must not lose sight of the fact that the ICMS-ST is nothing more than an anticipation of the normal ICMS. The fact that it was paid in advance could not deprive the taxpayer who was replaced of the right to exclude the tax from the basis of federal contributions.
This is an important precedent that applies to all taxpayers who have been replaced in relation to ICMS, such as car dealerships, gas stations, supermarkets, among others.
In this context, Marcos Martins Advogados Associados puts its tax law team at your disposal to answer any questions you may have about this important tax opportunity.
