Companies that have not yet filed lawsuits regarding the exclusion of the state tax on the circulation of goods and services from federal social contribution credits may have in the current suspension their last chance to secure the refund for the past 5 years.
By Larissa Moreira and Mauricio Nucci
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Legale Overseas, no. 948.
The National High Court of Brazil (STJ) has assigned to the repetitive appeals system the issue discussing the possibility of calculating credits for the Social Integration Program Contribution (PIS/Pasep) and the Contribution for the Financing of Social Security (COFINS), under the non-cumulative regime, on the amount of the Tax on the Circulation of Goods and Services (ICMS) incurred on the acquisition of inputs. Consequently, the suspension of all pending lawsuits nationwide addressing this matter was ordered.
Due to the developments of the “thesis of the century” (exclusion of ICMS from the PIS and COFINS tax base), Law No. 14,592 of 2023 was enacted based on the premise that, if the ICMS amount is not included in the calculation basis of the PIS and COFINS contributions, as decided by the Federal Supreme Court (STF), then the calculation of credits related to previous operations should also exclude the state tax.
The discussion revolves around the possible violation of the ICMS non-cumulative system by Law No. 14,592 of 2023, which requires taxpayers to exclude the ICMS amount highlighted on invoices when calculating PIS and COFINS credits.
With this assignment, the decision of the Superior Court of Justice will have binding effect on all judicial processes on the subject, providing greater legal certainty. Therefore, for companies that have not yet filed a lawsuit and wish to safeguard their right to claim refunds of amounts paid over the last five years, this may be the last window of opportunity.
For this reason, if the outcome is favorable to taxpayers, there is a chance of modulation of effects, limiting the recovery only to those who filed a lawsuit before the start of the judgment.
Vaz de Almeida Advogados closely monitors the developments of the discussion regarding ICMS credits in the calculation basis of PIS and COFINS, offering technical and strategic support to companies seeking legal certainty in tax matters.
Translation Disclaimer
This document was originally drafted in Portuguese and subsequently translated into English using artificial intelligence (AI).
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