The 2nd Panel of the Superior Court of Justice (“STJ”) granted a taxpayer’s appeal to recognize that the ICMS cannot be included in the calculation basis of the Social Security Contribution on Gross Revenue (CPRB). The decision was issued in the judgment on Special Appeal No. 1.732.000/SP, on May 3.
The reporting judge, Justice Herman Benjamin, stressed that, although the case under analysis deals with the substitutionary contribution established by Law No. 12,546/11, the Federal Supreme Court (“STF”) and the STJ understand that the debate is similar to Topic of General Repercussion 69 (dealing with exclusion of the ICMS from the PIS/Cofins basis), whose controlling case is Special Appeal RE No. 574.706. The other justices of the 2nd Panel concurred with the Justice’s opinion.
With the decision, the 2nd Panel aligns itself with the position already declared by the 1st Panel and, consequently, unifies the understanding of the panels that make up the 1st Section to the effect that the logic adopted by the STF applies to the CPRB, since, likewise, it deals with taxation that includes the ICMS (which is effectively not part of the taxpayer's assets) in determining the calculation basis for the tax.
The issue may be reviewed by the 1st Section in the judgment on Motion to Harmonize Case Law No. 1.694.357/CE, the written opinion of which is to be drafted by Justice Og Fernandes.
