By Marcelo Blecher

In a trial concluded on April 10, the 1st Section of the Superior Court of Justice (“STJ”) adopted the understanding that ICMS should not be included in the calculation basis of the Social Security Contribution on Gross Revenue (“CPRB”). The decision was handed down in a joint trial of 3 (three) special appeals.[1], judged under the system of repetitive appeals and will be binding on other Courts.

The three appeals challenged decisions by Regional Courts that were favorable to taxpayers. In them, the Treasury alleged that the discussion involved a different issue from the inclusion of ICMS in the PIS and COFINS calculation basis, since the case under analysis by the STJ involved a discussion related to “tax benefits.”

However, according to the vote of the Rapporteur, Min. Regina Helena Costa, the STF, when judging, under the general repercussion system, RE 574.706/PR recognized the unconstitutionality of the inclusion of the state tax in the calculation bases of PIS and COFINS, having even expanded this position to the demands involving the inclusion of said tax in the calculation base of CPRB.

Finally, it is important to highlight that the collegiate unanimously cancelled the Summary Rulings/STJ nºs 68 and 94. The first stated that the portion related to ICMS should be considered for the purposes of inclusion in the PIS calculation basis, and the other that ICMS should be included in the Finsocial calculation basis.

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

[1] REsp 1,624,297/RS, REsp 1,629,001/SC and REsp 1,638,772/SC