By Mariana Martins and Gustavo Paulucci Teixeira

On October 15, 2019, Normative Instruction RFB No. 1,911/2019 was published, through which the Federal Revenue Service consolidated the rules for the calculation, collection, inspection, collection and administration of PIS/COFINS, reaffirming the guidance set forth in COSIT Consultation Solution 13/2018 to the effect that the ICMS to be excluded from the calculation basis of said contributions is the ICMS debit, calculated in the non-cumulative system, and not the ICMS highlighted in the tax document.

The rule was issued less than two months before the judgment of the Embargoes filed by the National Treasury in the RE 574,706-PR proceedings, through which the possibility of the exclusion being valid only for the future is discussed, not covering the refunds/compensations requested by thousands of taxpayers with legal action in progress or already finalized. 

The stance of the Tax Authorities when regulating the reduction of PIS/COFINS credits, in itself, reveals the continuation of the legal uncertainty already faced by taxpayers who discuss the matter, especially for those whose actions have already been finalized and who have already started the procedure for qualifying their credits with the Federal Revenue Service. 

As the standard guides the actions of tax auditors, there will be a task force to restrict and hinder the return of amounts paid unduly, even to those taxpayers who have obtained a definitive judicial ruling indicating the most favorable calculation methodology, which considers the ICMS highlighted on the invoice. 

The measure forces taxpayers to give up part of their credit and attempts to curb the number of requests for authorization, which have been increasing throughout the country as the final outcome of the matter in the Supreme Court approaches.

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