[Free translation]
The Internal Revenue Service has the understanding that the ICMS on sales should be composed of gross revenue for the purpose of calculating IRPJ and CSLL calculated by the Presumed or Arbitrated Profit. In this context, it requires taxpayers to include in the calculation base for calculating said taxes (gross revenue) the amounts related to ICMS levied on their sales.
It happens that the Federal Supreme Court (STF) recently judged Extraordinary Appeal No. 574,706, in which there is a fixed thesis that: "The ICMS does not compose the calculation basis for the incidence of PIS and COFINS."
According to the opinion of the STF in that court, "the calculation basis is unique and refers to what invoiced, to the value of the merchandise or service, and therefore does not include a different portion." That is, the value received as a tax can not be assimilated to the value received by way of sale of goods or the provision of a service (revenue).
Thus, considering that gross revenue is the proceeds from the sale of goods or the rendering of services, we understand that it should also be applied to the determination of IRPJ and CSLL calculated on the presumed / arbitrated profit, by symmetry, the same understanding as stated by the STF at the trial of SR 574,706.
Within this context, we recommend to companies that are taxed by the Presumed Profit or the Arbitrated Profit to seek by means of a judicial measure the declaration that the ICMS should not compose the calculation basis of IRPJ and CSLL for not being a revenue nature, as well as repetition of amounts unduly collected in the last five years.
