Considering the STF’s decision in Extraordinary Appeal No. 574.706, judged under the general repercussion system, which established a position that taxpayers could exclude the ICMS from the PIS/COFINS tax base, several similar theses have gained force in the courts, among them the exclusion of the PIS/COFINS amount from its own tax base.

Decisions have been rendered in this same sense by the Judiciary, ensuring the taxpayers’ right to a refund of the amounts paid in the five years prior to the filing of the lawsuit.

The rationale for this type of decision is that the amount paid as PIS and COFINS (and other taxes) does not incorporate the taxpayers’ assets and, consequently, should not be treated as sales (PIS and COFINS tax bases), and should not be included in the calculation bases of these contributions. Furthermore, there is no legal provision for PIS and COFINS to compose their own calculation bases.

The most recent decision on the subject was handed down by Judge Wilney Magno de Azevedo Silva, from the 16th Federal Court in Rio de Janeiro, on July 12. The sentence considered that since the tax burden related to PIS and COFINS does not reveal income, pursuant to article 195, I, “b”, of the CF, it would not be possible to levy it on the calculation basis of said contributions “under penalty of allowing ordinary law to redefine concepts used by constitutional rule“.

The decision on the exclusion of PIS and COFINS from their own tax bases follows the logic that the contributions in question do not belong to the taxpayer, and cannot be considered part of its revenue.

The tax team is available for further clarifications on the subject.

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