[free translation]
The Federal Supreme Court, in setting the thesis that the ICMS on billing does not compose the calculation base for the incidence of PIS and Cofins, has brought to the fore the discussion regarding the incidence of PIS / Cofins on the charge of ICMS-ST (Paid on acquisition).
It should be pointed out that in the case of several companies that claim the right to exclude ICMS from the PIS / Cofins calculation basis, transactions subject to ICMS-ST are not generally discussed.
Therefore, due caution, interested taxpayers should evaluate the possibility of filing a new specific judicial measure to address the right to exclude from the PIS / Cofins calculation base, specifically, ICMS paid in advance in the form of ICMS-ST when purchasing goods For resale. Such a specific discussion is necessary, since the RFB should not accept the application of the STF decision in relation to the relative values ??of ICMS-ST.
It should be noted that, in the legislation and in the understandings emanating from the RFB and in the dominant position of the Judiciary, the state tax (ICMS-ST) is embedded in the price practiced by the substituted taxpayer and, therefore, in its billing.
Discount of PIS / Cofins credit on ICMS-ST
The topic discussed in this article is often addressed by companies because of the discount of PIS / COFINS credits on the ICMS-ST, and many companies deducted or claimed the right to the PIS / Cofins credit on the ICMS-ST In the acquisition of goods for resale, since they believe that this amount is part of the acquisition cost.
In response to this claim (PIS / Cofins credit on ICMS-ST), the dominant position of the Judiciary is that there is no right to credit, on the amounts that, as a substituted taxpayer, reaches the substitute taxpayer As ICMS-ST.
That is, it is settled agreement that the ICMS-ST does not represent acquisition costs (and, therefore, it is not possible to credit PIS / Cofins), and it is considered a charge for the resale of the merchandise to the final consumer.
Given this context, it is opportune for taxpayers to analyze the possibility of excluding the ICMS-ST from the calculation basis for PIS / Cofins incidence purposes, from RE 574,706 that rejected the PIS / Cofins incidence on ICMS, But with the specific action filing for both.
