[Free translation]
Last Wednesday (03/15/17) the Federal Supreme Court concluded the trial of the lawsuit that discusses the incidence of PIS / COFINS on ICMS values. The proclaimed result accounts for 6 votes in favor of the taxpayer's thesis and 4 votes in favor of the Treasury's thesis.
The following thesis was established: "ICMS does not make up the calculation base for the incidence of PIS and Cofins".
Despite the important victory already achieved, it is necessary to look at some points that are not yet fully defined.
Firstly, it is worth noting that the decision of the STF has not yet become final (not definitive). It is quite likely that the Union will bring an action to modulate the effects of the decision (to apply only from 2018, for example). In other similar cases, the Ministers have already modulated the effects of decisions aimed at guaranteeing legal certainty and social interest (as currently authorized by § 3 of article 927 of the Code of Civil Procedure). This possibility - modulation of the effects - implies in total uncertainty as to the real reach of the victory celebrated until now.
Another highlight is the situation of those who have not yet filed a lawsuit seeking to recover amounts unduly paid. Here, too, the answer will depend on how Ministers will decide on the modulation of effects. In the best scenario, the Ministers can define that it is possible to file the action to recover the last 5 years of collections. The worst case scenario will be to define that the decision only produces effects for the future (denying the right to return past values). While this item remains undefined, we suggest that taxpayers who have not yet filed a court order should do so. This guarantees, therefore, the right to the repetition of the debt and the interruption of the prescription.
Finally, it is imperative to record that the company must continue collecting (or depositing in full) the PIS and COFINS amounts (without excluding ICMS from the base). Otherwise, it may be assessed by the RFB, since the current legal regime currently determines the inclusion of ICMS on the basis of said contributions.
As it turns out, a good deal of patience is still needed to await the outcome of this topic. Nothing more if we consider that this question awaits judgment for more than 10 years in the STF.
