Opinion of the General Counsel for the National Treasury - Elimination of ICMS from PIS and Cofins tax base

According to Opinion SEI No. 7698/2021/ME, considering the appeasement of the matter in general repercussion, the General Counsel for the National Treasury (Procuradoria-Geral da Fazenda Nacional - PGFN) instructs the Brazilian Federal Revenue Office that tax liabilities should not be assessed in opposition to the Federal Supreme Court determination, and the Supreme Court directives for reviewing, on its own initiative, of assessment, reimbursement and refund of undue payment in the administrative level should be adopted.

This opinion determines that all procedures, routines and rules regarding PIS and Cofins collection from March 16, 2017 should be adjusted, to all taxpayers, due to the unconstitutionality of including the ICMS indicated in invoices in their tax base.

This instruction is relevant for the Special Secretariat of the Federal Revenue Office to start considering Article 19-A, III and § 1 of Act No. 10.522/2002, so that tax liabilities are not assessed in opposition to the Federal Supreme Court determination and the Supreme Court directives for reviewing, on its own initiative, of assessment, reimbursement and refund of undue payment in the administrative level, are adopted.

Although the PGFN's opinion instructs that all taxpayers may eliminate ICMS fromm PIS and Cofins tax base and receive compensation of overpaid contributions from March 16, 2017, the Federal Revenue Office has not changed the procedures, routines and/or rules as determined by the opinion. Considering this, we believe that filing a lawsuit would be appropriate to ensure the aforementioned right.