TRF-3 recognizes the ICMS-ST exclusion from PIS and COFINS tax bases

By: Guilherme Martins

The 6th Panel of the Federal Regional Court of the 3rd Region (TRF-3) recognized, by majority vote, the right of concessionaires to exclude the ICMS-ST value from the calculation basis of PIS and COFINS, when acting as substitutes, and authorized the amounts unduly paid compensation.

The discussion is a development of the so-called “century thesis”, in which the Federal Supreme Court (STF) ruled out the ICMS incidence on the PIS and COFINS tax bases in the judgment of RE No. 574.706 (Theme 69).

Despite the majority decision, the judgment was not uniformly decided. The reporting High Court Judge Diva Malerbi and Federal Judge Otavio Port voted to dismiss the appeal, mentioning the STJ 2nd Panel decisions, to the effect that ICMS-ST is not part of the PIS and COFINS tax bases and, therefore, the Theme 69 thesis does not apply to the situation.

Contrary to the opinion of the reporting High Court Judge, the Federal Judge Souza Ribeiro, accompanied by Johonsom di Salvo and Nery Júnior, voted in favor of the taxpayers. In their opinion, the STF judgment in RE No. 574.706 is pertinent to the case, since there was no distinction between the direct contribution and the tax substitution regime.

Despite the similarity and the same rationale applied, the exclusion of ICMS-ST understanding is not yet consolidated. However, the 1st Section of the Superior Court of Justice (STJ) has already recognized some of the special appeals as repetitive appeals, and has also determined the actions in the second instance involving the matter to be suspended. The recurrent issue no. 1125 is still being analyzed by the Court.

With the collaboration of Davi Matos.

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