At the beginning of July 2024, the 2nd Federal Court of Jundiaí issued a preliminary decision that allowed a cosmetics manufacturing company to submit a Declaration of Compensation (DCOMP) using credit after the five-year period from the final judgment of the court decision that generated it.

The credit, calculated at an original value of approximately R$$ 30 million, was obtained by the taxpayer through a legal action in which the exclusion of ICMS from the PIS and COFINS calculation basis was discussed, which became final and binding in March 2018. The request for credit qualification was granted in November 2018 and the company began to carry out the offsets from then on.

Although part of the credit had already been used, there was still a balance of approximately R$4 million, in its original value, and when trying to make another offset, the company was faced with a notice that the 5-year term had expired. Thus, the taxpayer filed a Writ of Mandamus so that he could continue making offset requests, claiming that the IN could not limit the full use of the credit already enabled.

In the decision, the application of article 106 of IN RFB nº 2055/2021, which establishes a 5-year term for filing the DCOMP, was dismissed, understanding that the prescriptive term is only applicable to request compensation and not to fully take advantage of the credit already enabled. To substantiate the decision, precedents from the Regional Federal Court of the 3rd Region (TRF-3) and the Superior Court of Justice (STJ) were also cited.

Thus, the decision, even though it is a preliminary injunction and may still be revoked throughout the process, represents a favorable understanding for taxpayers who have qualified the credit within the period of five years after the final decision and have continued to present the Compensation Declarations over the years.

We, at Mazzucco e Mello Advogados, remain at your disposal for any questions or clarifications that may be necessary.