TRF1 ELIMINATES THE INCLUSION OF ICMS IN THE CALCULATION BASIS OF PIS/COFINS-IMPORTATION

In a recent decision, the 8th Panel of the Federal Regional Court of the 1st Region, unanimously understood that the PIS-Import and COFINS-Import must be paid only on the customs value, and the ICMS levied on customs clearance and the value of the contributions themselves must be excluded from the calculation basis, as can be seen in the summary below:

“TRIBUTARY. PIS AND COFINS ON IMPORTS. CUSTOMS VALUE PLUS THE VALUE OF ICMS AND THE CONTRIBUTIONS THEMSELVES. UNCONSTITUTIONALITY. PRECEDENT OF THE FEDERAL SUPREME COURT.

1. The STF, in the judgment of RE 559.607, under the general repercussion regime (DJe of 10/17/2013), declared unconstitutional the expression plus the amount of the Tax on Transactions Related to the Circulation of Merchandise and on the Rendering of Interstate and Intercity Transport and Communication Services – ICMS levied on customs clearance and the amount of the contributions themselves, contained in item I of article 7 of Law 10865/2004.
2. Therefore, the inclusion of the ICMS and the value of the contributions themselves in the calculation basis of the contribution to the PIS – import and COFINS – import is undue.
3. Appeal and official remittance dismissed.”

(TRF1 – AC 0006218-49.2005.4.01.3801, 8th Panel, Judge Miguel Angelo de Alvarenga Lopes, Trial date: 04.09.18, Publication date: 05.18)

The Panel based its position on the judgment of RE No. 559.937/RS, with recognized general repercussion, where the unconstitutionality of the expression “increased by the value of the ICMS levied on customs clearance and the value of the contributions themselves”, provided for in article 7, item I, of Law 10865/2004, was declared, on the understanding that the concept of customs value did not include taxes.

In his vote, the Hon. Minister Dias Toffoli pointed out that “(…) The simple reading of the rules contained in art. 7 of Law No. 10865/04 already allows us to verify that the calculation basis of the social contributions on the importation of goods and services extrapolated the quantitative aspect of the incidence delimited in the Federal Constitution, by adding to the customs value the value of the incident taxes, including that of the contributions themselves (…)”.

Therefore, the taxpayers that collected the amounts may request the refund of the amounts unduly collected as PIS/COFINS-Imports.

We are at your disposal should you need any clarification on these or other issues.