The Federal Revenue intends to reduce the value of PIS and Cofins credits produced from the acquisition of goods and inputs. For this, it seeks support from the Attorney General of the National Treasury (PGFN).
The understanding, contained in an internal opinion of the General Taxation Coordination (Cosit), is that taxpayers must account for these credits using the same criteria for calculating payments to the Federal Government, that is, without the built-in ICMS.
The Internal Revenue Service states that it forwarded the opinion to the PGFN in the form of a “consultation”. However, he has already gained notoriety among lawyers, because he was joined in a process that is being processed at the Federal Regional Court (TRF) of the 3rd Region, based in São Paulo, less than 24 hours after the STF published the judgment of the “thesis of the century” (process No. 5000538-78.2017.4.03.6110).
The Body requests the attorneys to “ratify or rectify” the understanding.
“If the maintenance of ICMS on the value of the acquisition of goods that give the right to credit is allowed, there will be a complete distortion of the non-cumulative contribution to PIS and Cofins, emptying the collection”, says in the text.
This opinion also states that “in an extreme situation, considering the aggregation margins in the production and marketing chain of a given product, it is possible to reach a negative net balance”. And, in this case, the taxpayer would have amounts to be received and not to be paid, which would make the Union subsidize economic activity with amounts withdrawn from social security.
“We understand that this opinion has no binding effect. It was not published in the Official Gazette or on the IRS rules website. But it demonstrates a potential act to restrict the right to credit”, says lawyer Luís Alexandre Barbosa, from the LBMF office.
Taking credit is part of the calculation of social contributions for those who are in the non-cumulative regime – practically all large companies. The PIS and Cofins rate, in these cases, is 9.25%.
To calculate how much it owes, the taxpayer needs to separate the outgoing invoices, referring to sales made in the month, from the incoming invoices, which contain the cost of purchasing products that give the right to credit (inputs, for example). A meeting of accounts is made between these two groups of notes and the rate is applied to the result.
The STF decided, in May, that the ICMS portion that appears in the exit note – on the sale of products, therefore – should be removed from the calculation of PIS and Cofins. The ministers considered that the state tax cannot be classified as revenue or billing, which is the base of contributions.
With the removal of the state tax from the account, the PIS and Cofins calculation basis was reduced and, consequently, the amounts to be paid to the government were lower. Companies, furthermore, have the right to get back what they have wrongly paid in recent years. The cost of this thesis for the Union is estimated at R$ 358 billion, according to a study by the Brazilian Institute of Planning and Taxation (IBPT).
Now, the Internal Revenue Service is stating that, logically, the ICMS portion that appears in the receipts, that is, in the taking of credit, could not be accounted for either.
In fact, at least two companies were charged by the Court for amounts that they would have failed to collect from the public coffers in the last five years.
Sought by Valor, the Internal Revenue Service did not return until the closing of the edition. In a note, the PGFN says it is analyzing the opinion and will make a statement shortly.
With information from Valor Econômico