By Gustavo Paulucci Teixeira and Mariana Martins

At the beginning of the month, the Attorney General's Office (PGR) presented an opinion in the proceedings of RE No. 574,706/PR, through which it established, under the general repercussion system, the thesis that ICMS does not comprise the calculation basis for PIS/COFINS. Said opinion maintains that the judgment only produces effects for the future, more specifically from the date of the judgment of the Embargoes filed by the Treasury for this purpose.

The opinion in question was based on the premise that the established thesis produces an important change in the Brazilian tax system, reaching a large number of tax transactions and may result in the payment of refunds that will imply in “huge expenditures” to the public coffers.

Furthermore, he mentioned the current economic situation of the country as well as the need to prioritize the financial budgetary balance of the State. For these reasons, the modulation of the effects should occur with caution, so that “compliance with the arrest does not have retroactive effects, but is effective later”.

Notwithstanding the restrictive interpretation in the sense of restricting the right of taxpayers who filed lawsuits requesting the interruption of the collection of ICMS in the PIS/COFINS calculation basis and the refund/compensation of the collections made under this title, the PGR recognized that the STF Plenary extensively debated the issue brought up in the Extraordinary Appeal and even reaffirmed grounds present in other judgments, so that the Statement of Clarification filed by the National Treasury should be accepted only in response to the request for modulation of effects, given the absence of omission, obscurity or contradiction that justifies the reopening of the discussion.

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