Federal Revenue loses dispute over taxation of PIS and Cofins credits
A decision of the Federal Regional Court (TRF) of the 3rd Region, based in São Paulo, may delay the taxation of PIS and Cofins credits generated in the dispute of the exclusion of sales tax ICMS from the calculation base of those social contributions - a dispute that may cost R$250 billion for the federal government. The court's 4th panel ruled that the Federal Revenue can only charge income tax and Social Contribution over Net Profit (CSLL) when the credits to the taxpayer are ratified, and not at the end of the court proceedings.
The difference between the two periods may reach ten years. It's five years for the taxpayer to indicate the tax compensation and another five for the Federal Revenue to ratify it. In the case of ICMS from the calculation base of PIS and Cofins there is also discussion about the calculation of the credit, if it must be made based on the effectively paid ICMS or the one stated in the trade bill, which is higher.
The Federal Revenue charges 34% of income tax and CSLL for considering that tax credits represent asset increase. For the agency, the taxation must occur when the court dispute ends, even if the decision only acknowledges the right to compensation and doesn't define the value of credit to be used. Such interpretation is in Solution of Divergence Cosit no. 19 of 2003 and in Solution of Consultation Disit SRRF no. 233 of 2007.
Taxpayers, for their part, argue that the taxation should be at the time of ratification of the tax compensation, since after the end of legal proceedings it is still necessary to request certification of the credit and wait for approval of the Federal Revenue.
At the TRF, the 4th Panel analyzed the case of a chemical company (case no. 5033080-78.2019.4.03.0000) that claimed PIS and Cofins credits resulting from the exclusion of ICMS from their calculation base. The decision states that, "lacking the liquidity of the tax credit acknowledged in the writ of mandamus, the characterization of legal or economic availability of the income as generating fact of the [income tax] and CSLL will occur only at the time of ratification of the compensation by the Federal Revenue."
In her vote, the rapporteur of the case, Judge Marli Ferreira, also argued that, in the specific case, of credit because of ICMS inclusion in the calculation base of PIS and Cofins, there is "special relevance," since taxpayer and Federal Revenue diverge about what amount of state tax must be excluded from the base.
The...
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