Instructions to the Tax Administration - STF decision regarding ICMS elimination from PIS/Cofins calculation basis

The National Treasury Attorney-General's Office (Procuradoria-Geral da Fazenda Nacional - PGFN) published on May 26, 2021 ORDER No. 246, which instructs the Tax Administration, according to the appellate decision about the Motions for Clarification opposed by PGFN on Extraordinary Appeal 574.706/PR, to consider that:

a) as decided by the Federal Supreme Court, according to the General Repercussion's Topic 69 decision, "the Tax on Goods and Services (ICMS) is not included in Social Integration Program Contribution (PIS) and Social Security Financing Contribution (Cofins) calculation basis";

b) this decision takes effect after March 15, 2017, except for legal and administrative actions filed up to March 15, 2017.

c) only the ICMS indicated on invoices are excluded from PIS and Cofins calculation basis.

As a result, the sole paragraph of Art. 27 on Normative Instruction RFB No. 1.911/2019 expired. It established, for purposes of compliance with unappealable judgments regarding ICMS exclusion from PIS/Pasep and Cofins calculation basis, that the sum to be eliminated from the contributions' monthly calculation basis is the monthly amount of ICMS payable.

Accounting support to help your business seize this tax opportunity

By relying on DPC's experts, companies benefit from this court decision, either in cases where there is ongoing lawsuits or in situations where the company has not yet acted judicially.