[Free translation]
CURRENT JURISPRUDENCE
Since the institution of non-cumulative contributions to PIS and COFINS, Laws 10.637 / 02 and 10.833 / 03, RFB interprets in a restrictive way the provisions of these laws that deal with the concept of inputs, limiting the right to credits to goods and services used directly for the manufacture of goods and for rendering services that suffer wear, damage or loss of physical or chemical properties, same concept used for IPI purposes.
However, decisions of the Administrative and Judicial Courts gave different opinion on the concept of INSUMO, which implies an increase in the right to credits, reaching expenses that do not fall within the concept accepted by the RFB.
For the Administrative Council of Fiscal Resources - CARF, the concept of inputs, for the purposes of non-cumulative PIS / COFINS, should consider the essentiality of the company's revenue generation, admitting the credit on expenses "directly related to the production of the taxpayers and that they participate, affect, the universe of the revenues taxable by the contributions to the PIS and COFINS ", that is to say, it must be verified" if the expenditure is indispensable for the production of goods or the provision of services generating of taxes taxable by PIS or by the COFINS non-cumulative. "
It should be noted that the decisions in the CARF, although very important, still have no binding effect within the Board itself, nor does it oblige the RFB to adopt the same understanding.
In the scope of the Superior Court of Justice - STJ, in the session of 02/22/2018, Special Appeal 1,221,170 / PR was judged. In this process, it was decided that the concept of inputs should not be as restrictive as the RFB understands, and also that the inputs are not only linked to the elements that directly relate to the production process or to the provision of the service.
Moreover, by that decision, the element of the essentiality and / or the relevance of the expense, according to the activity developed, must be analyzed to determine the right to the credit. That is, this decision recognizes that there are other elements, even if indirect, that are essential / essential for the achievement of the corporate purpose of the company, which should allow credit in the non cumulative calculation of PIS / COFINS.
It is also pointed out that this matter is still to be analyzed by the Supreme Federal Court (STF), which will judge Extraordinary Appeal 841,979 / PE (with general repercussion), when it will have the final decision on the expenses with the right to credit PIS and COFINS.
THE NEED FOR INDIVIDUAL ANALYSIS
In addition, we emphasize that the concepts brought into the existing decisions are quite subjective, thus requiring individual analysis by each company, considering the expenses incurred and their respective activities.
Finally, given the relevance of the current jurisprudence (administrative and judicial), we consider it opportune, that each company subject to non-cumulative PIS / COFINS, perform technical-legal analysis in order to increase the credits of these contributions for future calculations, as well as analyze the possibility and the safe means for recovery of credits for the last 5 years.
We are now ready to conduct this study in order to plan the strategy to be adopted (administrative or judicial) that imply more gains and less risk.
