By Mariana Martins and Gustavo Paulucci Teixeira

The trial of the Statement of Clarification filed by the Federal Union in the proceedings of RE No. 574,706/PR, which discusses the exclusion of ICMS from the calculation basis of PIS and COFINS, was scheduled for 12/5/2019.

The STF will have to analyze, among other points, the issue of modulating the effects of the decision that excluded ICMS from the calculation basis of the aforementioned contributions, issued in a session held in March 2017. The Union's request is that the decision have effects ex tunc (“forward”), that is, valid only from the date of the judgment made by the Supreme Court, so that requests for refund and/or administrative compensation made by taxpayers who have filed legal measures after that date would be rendered unfeasible.

In addition to the request for modulation, the National Treasury, through the aforementioned Embargoes, seeks clarification on which ICMS should be excluded from the PIS and COFINS calculation basis: the one highlighted on the invoice or the one actually paid by the taxpayer. The issue will also be considered in the session that will take place on December 5th.

The judgment in question concludes the discussion of the matter in the judicial sphere, bringing impacts to all the processes currently being processed in the lower courts on the subject, including those whose final judgment has already been certified.

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