STF finishes the trial concerning the exclusion of ICMS from PIS/Cofins

The Federal Supreme Court (Supremo Tribunal Federal - “STF”), in a historic decision, has sustained on this Thursday (May 13) the interpretation that the ICMS may not be included in the calculation basis of PIS/Cofins.

In the modulation, the exclusion of ICMS from the PIS/Cofins tax calculation base will be effective as of March 15, 2017 and that the amount to be excluded is the ICMS highlighted on the invoice and not the amount actually paid.

With the decision, seeking a consultative support to make sound decisions in view of this opportunity is recommended to companies. The scenario is as follows:

• Companies that filed a lawsuit until March 15, 2017: those are entitled to a refund of the overpaid PIS/Cofins Contributions, considering the five-year period prior to the date of the lawsuit.
• Companies that filed a lawsuit after March 15, 2017 and those companies that file as of the present date: the exclusion of ICMS from the PIS/Cofins base is only valid as of March 15, 2017.

In order to recover the amounts overpaid for the cases that have been judged, an administrative procedure is started to qualify the credit and, after the decision of the qualification, an application for the return or offset via PER/DCOMP is made.

Specialized support

The DPC's Taxes team is available to support the clients in the practical developments arising from the decision, both in cases involving an ongoing lawsuit and in situations in which the company has not adopted any legal measures.