By Mariana Martins
The Internal Consultation Solution COSIT No. 13/2018 was published the day before yesterday, on October 23, 2018 (Tuesday), through which the Federal Revenue Service released a binding understanding for the entire tax administration regarding the form of calculation of the PIS/COFINS credit balance to be refunded to taxpayers who already have a final and binding decision in an action filed to discuss the exclusion of ICMS from the calculation basis of the aforementioned contributions, in accordance with the thesis established in the judgment of RE 574,706/PR.
Through the Internal Consultation Solution, the Federal Revenue Service, with the clear intention of restricting in its favor the application of the thesis established in the judgment of the aforementioned RE, determined that the portion of the ICMS to be excluded from the PIS/COFINS calculation basis must correspond to the amount of tax actually collected in favor of the State Public Treasury, and not to the amount highlighted on the invoice.
This understanding, however, differs from that supported by taxpayers in legal actions on the subject, in the sense that the ICMS deduction must occur for the amount highlighted on the invoice, regardless of payment.
It should be noted that this is one of the issues subject to the Embargoes filed by the National Treasury, the judgment of which is still pending in the STF, and that the thesis established in the previous step in terms of general repercussion does not specify the portion of the ICMS to be deducted, merely stating that “ICMS does not form the basis for calculating PIS and COFINS.”
This time, the Treasury's stance in anticipating and subverting in its favor a thesis whose decision has not even become final in the Supreme Court is worrying. If successful, it will significantly reduce the taxpayer's expectations regarding the amount of PIS/COFINS recoverable through the numerous lawsuits filed throughout the country to discuss the issue, which, it seems to us, is far from gaining definitive contours.
State of Rio de Janeiro grants installment payment of ICMS debts with advantageous reduction of fines and interest
Two resolutions were published on October 22, 2018 (Monday) in the Official Gazette of the State of Rio de Janeiro – one from the State of Rio de Janeiro Finance Department (SEFAZ/RJ Resolution No. 333/2018) and another from the State of Rio de Janeiro Attorney General's Office (PGE Resolution No. 4,280/2018) – which regulate the granting and procedures for joining the debt installment plan established by State of Rio de Janeiro Decree No. 46,453/2018.
The aforementioned benefit consists of the reduction of fines and interest related to ICMS debts, including ICMS-ST debts, whose taxable events occurred up to December 31, 2017, as well as fines imposed by the Court of Auditors of the State of Rio de Janeiro, registered in active debt, whether or not filed in court, with due date up to July 30, 2018.
In general terms, with regard to the debts described above, the benefits will be granted in the following summarized form:
| Reduction percentage | Payment method | |
| Fines | Default interest | |
| 85% | 50% | Single installment |
| 65% | 35% | 15 installments |
| 50% | 20% | 30 installments |
| 40% | 15% | 60 installments |
As regards ICMS fines, whether they are primary or resulting from non-compliance with accessory obligations, registered in active debt, whose violation occurred up to March 31, 2018, the benefits will be granted as follows:
| Reduction percentage | Payment method | |
| Fines | Default interest | |
| 70% | 50% | Single installment |
| 55% | 35% | 15 installments |
| 40% | 20% | 30 installments |
| 20% | 15% | 60 installments |
The benefit must be requested through the Fisco Fácil Portal by those taxpayers who already have access to said portal, or in person at their respective tax office, if they are not authorized to access SEFAZ/RJ's electronic services.
The deadline for joining will end on December 1, 2018, and the taxpayer must indicate, in detail, which debts he/she wishes to include in the program, without the need to settle other outstanding debts, whether related to the main obligations or accessory obligations.
Finally, it should be noted that opting to join the benefit will imply compulsory and definitive withdrawal from any current installment plan, as well as from any administrative and/or judicial discussion related to the debts included, given that this is an irrevocable and irreversible extrajudicial confession, in accordance with current legislation.
The Mazzucco e Mello Advogados tax team is available to provide any clarification on these topics.