The First Section of the Superior Court of Justice (STJ) unanimously decided that PIS and Cofins are included in the tax base for IRPJ and CSLL calculated under the presumed profit system. This ruling was established in a repetitive appeal under Topic 1312, and its application is mandatory for other instances of the Judiciary and the tax administration.

The rapporteur, Minister Paulo Sérgio Domingues, understood that legal entities are free to opt for the simplified presumed profit regime, provided they do not fall under any of the impediments outlined in Article 14 of Law 9718/1998.

With this, the company "gives up using more detailed tax accounting, but also gives up using deductions and revenues not foreseen in the presumed profit regime, so it cannot take advantage of the benefits of different systems," he stated.

He cited having reasoned similarly to that of Topic 1240, in which the panel established that the ISS (Service Tax) forms part of the calculation basis for IRPJ (Corporate Income Tax) and CSLL (Social Contribution on Net Profit) calculated under the presumed profit system.

Furthermore, Domingues explained that he saw no need to establish a modulation of the effects of the decision because there had been no change in jurisprudence.

In this specific case, Lafisa Investimentos e Participações SA argued that the contributions do not represent the company's own revenue or turnover, nor are they part of its available wealth subject to taxation. The taxpayer expected the application of a thesis similar to Topic 69 of the STF (Supreme Federal Court), through which the STF recognized that ICMS (Tax on Circulation of Goods and Services) is not included in the base of PIS (Social Integration Program) and Cofins (Contribution to Social Security Financing).

According to the tax law expert and partner at Mazzucco & Mello Lawyers João Paulo Toledo de Rezende, The Superior Court of Justice (STJ) followed the jurisprudence that the concept of "gross revenue," as defined by infra-constitutional legislation, encompasses taxes levied on sales for the purposes of calculating Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL) under the presumed profit regime. According to the court, from an economic standpoint, the decision represents yet another factor contributing to a high tax burden for companies opting for the presumed profit regime.

“"This regime had already been impacted recently by the increase in corporate income tax on the portion of quarterly gross revenue exceeding R$ 1.25 million, a topic that has also been the subject of judicial discussion and which has precedents favorable to taxpayers," he criticized.

Source: JOTA.