After the judgment of the declaratory appeals was concluded on 05/13/2021, the Attorney General's Office of the National Treasury (“PGFN”) issued Opinion SEI No. 7698/2021/ME, indicating the procedures that must be observed by the Brazilian Federal Revenue Service (“RFB”) to comply with the thesis established in RE 574,706, which determined the exclusion of ICMS (highlighted on the invoice) from the calculation basis of PIS and COFINS.

It is worth remembering that, by majority vote, the Supreme Court Plenary ruled that: (the) the effects of the exclusion of ICMS from the PIS and COFINS calculation basis must occur after 03/15/2017, except for legal actions and administrative requests filed up to 03/15/2017, and (b) the ICMS to be excluded from the calculation basis for PIS and COFINS contributions is the one highlighted on the invoices.

According to the SEI Opinion, in view of the pacification of the matter under the general repercussion regime, the PGFN advises the RFB not to create tax credits in violation of the aforementioned determination of the STF, as well as to adopt the guidelines of the Supreme Court for the purposes of ex officio review of the assessment and refund/reimbursement of undue amounts within the administrative scope.

Furthermore, the Attorney General's Office emphasizes that the procedures relating to the collection of PIS and COFINS and the exclusion of ICMS from their calculation bases must be adjusted from March 16, 2017 in relation to all taxpayers, so that, “regardless of the filing of lawsuits, each and every taxpayer is guaranteed the right to recover, in the administrative sphere, amounts that were collected unduly”.

Finally, regarding the processes currently under discussion on the matter, the PGFN will be exempted from contesting, offering counterarguments and filing appeals, as well as authorized to withdraw appeals already filed, provided that there is no other relevant basis.