The Supreme Federal Court (STF) concluded, in March, the analysis of an important tax issue involving the exclusion of presumed credits of Tax on Circulation of Goods and Services (ICMS) from the calculation bases of PIS and Cofins. This is the judgment of an extraordinary appeal brought by the Union, RE No. 835.818/Theme 843 of the General Repercussion – Possibility of excluding the pis and cofins calculation base from the amounts corresponding to presumed ICMS credits arising from tax incentives granted by the states and the Federal District. Although the trial was paralyzed by the request for the view of Minister Dias Toffoli, the votes cast by the other ministers already form a majority by the dismissal of the appeal.

The discussion is not new, but the theme gained prominence with the recognition of its repercussion, which will impact everyone who is subject to this taxation. The trial also drew attention for inserting itself in the new avalanche of tax issues judged by the Supreme Court in 2021.

Regarding the discussion, the taxpayers defended the exclusion of the presumed ICMS credits from the pis and cofins calculation bases. The claim is that these credits could not be considered revenue or billing, which are the basis for calculating the contributions in question.

Another important foundation was pointed out for the non-taxation of these values by PIS and Cofins. The presumed iCMS claim would actually be a tax waiver by the taxing authority (state). Thus, any attempt to tax these amounts could result in violation of the federative pact and emptying of the tax benefit itself.

In turn, the National Treasury argued that the granting of the presumed iCMS credit would lead to a reduction in costs and expenses, which would result in an increase in taxpayer revenue, even if indirectly. From this point of view, the amounts relating to presumed ICMS credits should form the basis for calculating PIS and Cofins.

The National Treasury also maintained that there would be no legal provision for the exclusion intended by the taxpayer, because this exclusion is not included in the list of Art. 1, § 3 of Law No. 10,637/02 and the same article and paragraph of Law No. 10,833/03. For the agency, the non-taxation of presumed ICMS claims by PIS and Cofins would violate Article 150, § 6 of the Federal Constitution of 1988 (CF/88).

The theme, therefore, goes through the question of the concept of billing and revenue for the purposes of pis and cofins incidence, a discussion that is not unprecedented in the Supreme Court.

In other opportunities, the Supreme Court considered that the ICMS could not be the basis for calculating the aforementioned contributions, since it does not constitute the taxpayer's own wealth (it is mentioned, for example, RE No. 574.706/PR and RE No. 240,785/MG, which analyzed the exclusion of the ICMS from the pis and cofins calculation bases).

Reiterating the understanding already established by the Supreme Court, the vote of Minister Marco Aurelio, rapporteur of the case, for whom the presumed credits of ICMS are not confused with the concept of revenue or billing, bases for calculating these contributions (art. 195, I, "b" of the CF/88).

Minister Marco Aurelio suggested the fixation of the following thesis: "It appears incompatible, with the Federal Constitution, the inclusion, in the basis of calculation of Cofins and the contribution to the PIS, of presumed credits of the Tax on Circulation of Goods and Services - ICMS."

The written vote of Minister Edson Fachin was also made available. In addition to accompanying the rapporteur, the Minister examined the subject from another perspective, which involves the very concept of subsidy and the express exclusion of the investment grant (category in which presumed ICMS credits are included) from the pis and cofins calculation bases, provided for by laws no. 10,637/02 and 10,833/03, with the changes promoted by Law No. 12,973/2014 and Complementary Law No. 160/2017.

According to Minister Edson Fachin, the law itself would have already been able to exclude investment subsidies from the calculation bases of pis and cofins, precisely because they are not characterized as revenue. For this reason, the taxation sought by the Union is also, according to the Minister, incompatible with the Federal Constitution.

The disagreement was opened by Minister Alexandre de Moraes, who asserted that the exclusion sought by the taxpayer would not find legal support (art. 1, § 3 of laws no. 10.637/02 and 10.833/03). Making an interpretation "averse" to the federative pact, the minister understood that the granting of presumed ICMS credits by the states could not prevent taxation by the Union in relation to the part that "is its".

The rapporteur accompanied the ministers Edson Fachin, Rosa Weber, Carmen Lucia, Ricardo Lewandowski and Roberto Barroso. Ministers Alexandre de Moraes, Gilmar Mendes, Nunes Marques and Luiz Fux voted unfavorably to the taxpayer. The Minister Dias Toffoli asked for a view of the case, interrupting the trial.

At least to date, a possible modulation of the effects of the decision by the Supreme Court has not been mentioned. If there is no modulation, the decision is valid to ensure future and future values.