Query solution on STF decision which excluded the ICMS PIS and COFINS calculation basis

By the Supreme Court (STF) comprehension in RE 559.937 trial, which decided for the unconstitutionality of inclusion of the Tax on the Circulation of Goods and on Transportation Services Delivery Interstate and Intercity and Communication (ICMS) and the own contributions value in calculation base for PIS-PASEP-import and COFINS-import duties on import operations, and given that decision links the RFB procedures, including the recognition of undue tax since Oct-10-2013, the Consultation Solution DISIT/SRRF06 No. 6012 was issued on 03.31.2017 (published in the Official Gazette of Apr-04-2017).

The document explains that the "ICMS owed by the company in taxpayer condition (due to own operations or services) makes its invoicing, and have no legal provision allowing the exclusion PIS/Pasep due in operations in the domestic market from cumulative calculation basis. The edition of Treasury General Attorney declaratory act approved by the Finance Minister, pursuant to Article 19, II, of Law No. 10,522, of July 19, 2002, on settled case law object matter of the Supreme Court links to the tax authorities, being prohibited to the Federal Revenue of Brazil the constitution of their tax credits. However, declaratory act that deals on the exclusion of ICMS contribution calculation basis for PIS/PASEP over internal operations is nonexistent. The matter, currently Declaratory Action of Constitutionality object, is awaiting final decision on the merits, which is linking for the Public Administration.”

According to RFB position, companies still do not have legal permission to exclude ICMS from the PIS and COFINS calculation basis should wait for its final decision.