The Attorney General’s Office of the National Treasury expressed its opinion on the opinion of the General Coordination of Taxation (Cosit) which argues that in the contribution to PIS and Cofins levied on the sale or to be offset, the ICMS value of the invoice must be excluded from the calculation basis, as it does not include the value of the merchandise. It also denies the possibility of taking advantage of PIS/Cofins credits on the ICMS value.
The understanding of the Revenue that it is not possible to take advantage of PIS/Cofins credits on the ICMS amount will have the consequence of reducing the calculation basis of the credits and, consequently, increasing the amount to be collected as PIS and Cofins.
Cosit Opinion 10/2021 rekindled the debate on the impacts of the Federal Supreme Court decision on the judgment on modulation of the effects of decision which excluded ICMS from the PIS and Cofins calculation basis (RE 574.706), the so-called “thesis of the century”.
In its statement, the PGFN defends that the exclusion of ICMS from the calculation basis of contributions leads, as a logical and legal consequence, to the need to also exclude ICMS from the PIS/Cofins credit.
“If no taxpayer will have to bear this ‘expense’ any longer, its respective value cannot generate any type of credit for any taxpayer either. It is, therefore, a logical legal consequence of the judgment of RE 574,706, which must be observed so that the taxpayer does not indulge unlawfully, artificially reducing the value of the tax to be paid”, says an excerpt of the document.
to the tax expert Breno Dias de Paula, the positioning of both the PGFN and the Revenue contributes to install legal uncertainty in the country. “Once again, treasury activism seeking to override the authority of res judicata of the Judiciary. Opinion Cosit 10 insists on restricting the scope of the court decision. The restriction of credit to offset cannot be done by restrictive interpretation of the Internal Revenue Service. Possible change only by law. The Supreme Court defined the scope of the constitutional concept of billing and everyone must obey, including the Federal Revenue”, he defends.
Click here to read the PGFN statement