In an opinion favorable to taxpayers, the Attorney General's Office of the National Treasury (PGFN) stated that it is not possible to exclude ICMS from the calculation basis for PIS and COFINS credits. The PGFN's statement, through opinion no. 14483-2021, was made due to the judgment of RE 574,706, the so-called “thesis of the century”, in which the Supreme Federal Court (STF) decided that ICMS should not be part of the calculation basis for contributions.

After the trial, the Federal Revenue Service began to present an interpretation that would exclude ICMS from the calculation of PIS and COFINS credits, thus reducing the amount of credits for contributions on incoming goods. However, the PGFN understood that the Supreme Court's decision only decided on the exclusion of ICMS from the PIS/COFINS calculation basis to be collected, but the judgment did not change the contribution credit regime.

According to the opinion: “The judgment does not contain any change or reference regarding the non-cumulative system of PIS and COFINS, which have their own infra-constitutional rules.”, nor could such a topic have been addressed in the records, given that there was no discussion on the matter in the original proceedings.

According to the document, the judgment of Theme 69 by the STF does not authorize the extension of the understanding established there to the calculation of PIS and COFINS credits: “based solely on the content of the judgment, it is not possible to foresee the possibility of recalculating PIS/COFINS credits determined in entry transactions, because the issue was not, and could not have been, discussed in the judgment of Theme 69”.

It is important to highlight that the opinion issued by the PGFN is binding on the entire tax administration, so that the Federal Revenue Service cannot adopt a different understanding tending to exclude ICMS from the calculation basis of PIS and COFINS credits.