By Patricia Fabris

It is already known that all taxpayers who are not in the simple national, but in the calculation of Presumed Profit or Real Profit must seek the judiciary to assert the decision handed down in the Extraordinary Appeal RE 574,706/PR, judged in general repercussion by the Federal Supreme Court – STF, which recognized the unconstitutionality of the inclusion of ICMS in the calculation basis of PIS and COFINS.

This decision consolidated the understanding regarding the government's impossibility of charging contributions in relation to the calculation basis with the inclusion of ICMS, since this tax is not part of the concept of gross revenue/turnover.

In view of this, several taxpayers have already sought their rights and filed the aforementioned action requesting the immediate exclusion of ICMS through the granting of injunctions, as well as the recovery of amounts paid unduly over the last 5 years.

In the meantime, all taxpayers are asserting their rights through legal measures and achieving success in their demands, which required the National Treasury to attempt to file an Appeal before the Supreme Court in order to re-discuss a matter that has already been decided and recognized as unconstitutional;

Therefore, after having his extraordinary appeal denied, he filed an internal appeal with the TRF3 requesting a stay of the trial until the STF defined the modulation of the effects in the Appeal that deals with General Repercussion. This appeal was also denied, and he was not satisfied with that, so he filed a complaint with the Supreme Court, and Justice Celso de Mello, upon assessing the case, decided:

“Understanding established by the Supreme Federal Court in terms of general repercussion. Formation, in this case, of a precedent. Publication of the respective decision. Possibility of immediate monocratic judgment of cases that deal with the same subject. No need, for this purpose, for the final judgment of the confrontation paradigm (“leading case”). Applicability to the case of art. 1,040, item I, of the CPC/2015. Precedents of the STF and STJ. Doctrine.

Complaint. Constitutional function. Its use as an inadmissible procedural shortcut designed to allow the immediate submission of a dispute to the direct review of the Supreme Federal Court is unfeasible. Precedents. In this case, there is no alleged usurpation of the jurisdiction of this Supreme Court, nor any alleged transgression of the authority of its judgment. Complaint denied. (RCL 30996 TP/SP, decided on 08/09/2018.) (gn)

In view of this latest decision by the Supreme Court rejecting that the matter decided in General Repercussion should be enforced nationwide, we have yet another foundation that demonstrates legal certainty regarding the Exclusion of ICMS from the PIS/COFINS calculation basis.

Therefore, those who have not yet sought the judiciary to claim their right already recognized and consolidated by the Supreme Federal Court, now have yet another decision that solidifies the right regarding the unconstitutionality of the charge.