At its meeting on Monday, 8/10/14, the Supreme Court concluded the judgment of the extraordinary appeal in 240785 / MG. Ministers understood by majority unconstitutional the inclusion of ICMS in COFINS tax base. In other words, it is not valid to require COFINS on amounts received by the company by way of VAT on the sale of your products / services.
The vote cast by the Rapporteur Minister Marco Aurélio Mello was agreed that the concept of billing provided for in art. 195, I, "b" of the Federal Constitution should be considered only as the amount received by who sells goods or provides services. In this context, the COFINS calculation basis provided in LC 70/91 can not go beyond the value of the business, ie, the portion perceived with the commercial operation or performance of the service.
It is worth noting that there are two other cases in the Supreme Court (in ADC 18 and the RE 574 706) whose matter is similar and that have not been tried. In this scenario, the National Treasury also seeks to support the thesis of validity of the rules.
However, with the trial now reported (240,785 RE / MG, judged on 08.10.14) the Supreme Court clearly defines its position on the subject, serving as a precedent of the utmost importance to taxpayers.
At the height of the Internet and electronic processes, interesting to note that this process awaiting trial in the Supreme Court since 1998 (15 years!).
Finally, remember that customers who have not filed an injunction must do so to recover the amounts wrongly paid in the past, avoiding with this, a prescription from your right.
