The 6th Panel of the Federal Regional Court of the 3rd Region (TRF-3) recognized, by majority, the right of concessionaire companies to exclude the ICMS-ST amount from the PIS and COFINS calculation basis, when in the capacity of substitutes, and authorized the offsetting of amounts unduly collected.

The discussion is an offshoot of the so-called “thesis of the century”, in which the Federal Supreme Court (STF) ruled out the incidence of ICMS in the calculation basis of PIS and COFINS in the judgment of RE No. 574,706 (Theme 69).

Despite the majority decision, the judgment was not decided uniformly. The reporting judge Diva Malerbi and the summoned federal judge Otavio Port voted to deny the appeal, citing judgments from the 2nd Panel of the STJ, to the effect that ICMS-ST does not form part of the calculation basis for PIS and COFINS and, therefore, the thesis of the judgment of Theme 69 would be inapplicable to the case.

Contrary to the rapporteur's vote, Federal Justice Souza Ribeiro, accompanied by Johonsom di Salvo and Nery Júnior, voted in favor of the taxpayers. In the understanding stated, the STF's judgment in RE No. 574,706 corresponds to the case, since there was no distinction between the direct contribution and substitution tax regimes.

Despite the similarity and even the applied rationale, the understanding regarding the exclusion of ICMS-ST has not yet been consolidated. However, the 1st Section of the Superior Court of Justice (STJ) has already recognized some of the special appeals as repetitive, as well as ordered the suspension of the actions that are being processed in the second instance involving the matter. Repetitive theme no. 1125 will still be analyzed by the Court.