By Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes*

In yet another important judgment on tax issues that took place in December 2023, the Plenary of the Federal Supreme Court (“STF”), when analyzing General Repercussion Theme No. 504, understood that the Presumed IPI Credit, arising from the acquisition of inputs for the manufacture of products intended for export, must be excluded from the PIS and COFINS calculation basis.

By majority vote, the STF established the following thesis: “Presumptive IPI credits, established by Law No. 9,363/1996, do not form part of the calculation basis for contributions to PIS and COFINS, under the cumulative calculation system (Law No. 9,718/1998), as they do not conform to the constitutional concept of billing.”

The reasons that guided the majority of Ministers are based on the interpretation of these “revenues”, equivalent to incoming values as Presumed IPI Credit, as being outside the scope given by the Constitution to the calculation basis of PIS and COFINS, which is revenue. of companies, not to be confused with an existing credit in the legal tax system to relieve the sales chain of products intended for export.

Another argument that concludes the discussion is that the Constitution, in its Article 149, guarantees full immunity to any income derived from operations aimed at exporting products.

The judgment has an important impact on the relief of the production chain, considering that the presumed IPI credit is understood as a benefit that aims to relieve the production chain and stimulate the competitiveness of Brazilian companies in the international market.

Now, it remains to wait for the deadline for a possible appeal by the Federal Union, as well as a possible modulation in the effects of the precedent.

Our team is available to provide any clarifications.

(with the collaboration of Pedro Antônio GM Buzas)