By: Marcelo Blecher

The panels of the Administrative Council of Tax Appeals (“CARF”) have been diverging on the possibility (or not) of excluding amounts related to ICMS from the calculation basis of PIS and COFINS. Since the beginning of the year, the matter has been judged repeatedly by the 5 (five) panels of the 3rd Section of CARF, with results that vary from the application of the understanding recently established by the Federal Supreme Court (“STF”), in the judgment of Extraordinary Appeal (“RE”) 574.706/PR, which determines the exclusion of ICMS from the calculation basis of the aforementioned contributions, to the adoption of the contrary precedent of the Superior Court of Justice (“STJ”).

In a decision recently handed down by the 2nd Ordinary Panel of the 4th Chamber of the 3rd Trial Section of CARF[1], for example, the interpretation given by the STJ prevailed in 2017, when judging Special Appeal (“REsp”) 114,469/PR, in the sense that the ICMS highlighted in the invoice, due and collected by the taxpayer, makes up its revenue and integrates the concept of gross revenue, being subject to taxation by contributions to PIS and COFINS, to disregard the understanding established by the STF, due to the pending judgment of Clarification Embargoes, and, consequently, the final judgment of the referred Extraordinary Appeal.

According to the vote of Rapporteur Laércio Cruz Uliana Junior, according to art. 62, § 2, of the Internal Regulations of CARF, only final decisions on the merits, that is, final and binding, issued by the STF and STJ, in the system of general repercussion and repetitive appeals, must be reproduced by the counselors in the judgment of appeals within the scope of CARF.

In a statement, the National Treasury Attorney General's Office (“PGFN”) expressed itself in the same sense, stating that it awaits the finalization of the final judgment of the matter by the STF, with the assessment of the declarations of appeal pending judgment.

The Mazzucco & Mello Advogados tax team is available to provide any clarification on this topic.

[1] CARF, 3rd Section, 4th Chamber, 2nd Panel, Rapporteur Laércio Cruz Uliana Junior. Administrative Proceeding No. 10980.940183/2011-26 – Judgment No. 3402006.283. Judgment session of February 26, 2019