[Free translation]
In Legal Alert no. 06/2017 we recommend to companies that have passed, by virtue of Law, to collect the CPRB - social security contribution on the gross revenue in substitution for the contribution on the sheet, to arrange the filing of a judicial measure in order to obtain a decision authorizing to "exclude ICMS from the calculation basis CPRB - social security contribution on gross revenue".
This judicial thesis, which seeks to exclude the tax from the basis of calculation of the contribution, follows from the judgment rendered by the Federal Supreme Court (SR No. 574706), which established the understanding that the amount received as ICMS can not be equated to the amount received by way of sale of goods or provision of a service. Consequently, it determined in that case that "ICMS does not make up the calculation base for the purposes of PIS and Cofins".
Aligning its position with the Supreme Court's understanding of the matter, the 1st Panel of the Superior Court of Justice, in a very recent judgment, unanimously decided that the ICMS can not be included in the calculation base of the Social Security Contribution on Gross Revenue (CPRB) ).
In this sense, we reiterate the recommendation that companies that have been or are still submitted to the CPRB to seek, through a judicial measure, the repetition of amounts unduly collected in the last five years, as well as a statement that the requirement of inclusion of ICMS on the basis of said contribution.
