The Federal Union Declaration Embargoes were judged yesterday (13/05/2021), in the lawsuit that discusses the exclusion of ICMS from the PIS and COFINS calculation base (Thesis 69).
Although the merit had already been judged more than 4 years ago (03/15/2017) - in the sense that the ICMS is not company revenue and, therefore, cannot be included in the PIS / COFINS calculation base -, the Federal Union sought through the aforementioned embargoes to re-discuss certain aspects of the decision.
Two relevant items were defined in yesterday's judgment and can be summarized as follows:
- “ICMS highlighted” versus “ICMS calculated” - it was decided by the STF that the ICMS to be excluded from the PIS / COFINS calculation basis is the one highlighted in the outgoing invoice. On this point, the Federal Union's embargoes were rejected by 8 votes to 3.
- Modulation of effects - On this item, the Ministers partially accepted the Federal Union's Embargoes to modulate the effects of the decision. It was decided that the Judgment (which recognized the unconstitutionality of the ICMS requirement on the basis of PIS / COFINS) will take effect only after the judgment that took place on 3/15/2017, safeguarding the cases in which the taxpayer already had a lawsuit in progress or administrative procedure questioning the requirement. In practical terms, the law is considered valid until that date (03/15/17), with the exception of cases in which the taxpayer was already litigating.
Based on this decision, most of the doubts that still remained on the topic were resolved.
However, specifically regarding the modulation of effects, many other doubts arise from now on. In this context, it is very likely that new Declaration Embargoes will be filed (this time, by the taxpayers).
In other words, the trial has ended, but the discussion has not!
