SUPREME COURT PUBLISHES DECISION ON THE EXCLUSION OF STATE TAX FROM SOCIAL CONTRIBUTIONS ON REVENUE CALCULATION BASIS

The judgment delivered by the Plenary of the Federal Supreme Court (“STF”) in the Extraordinary Appeal (“RE”) No. 574,706, judged under the system of general repercussion (binding judgement), which fixated the thesis that the State Tax (“ICMS”) can’t be included in the calculation basis of Social Contributions on Revenue (“PIS” and “COFINS”) was published in the Official Gazette of October 3rd.

At the time of the judgment, the Attorney of the National Treasury postulated the modulation of the effects of this decision, that is, the limitation, in time, of its applicability, considering the amounts that should be returned by the National Treasury to the taxpayers who collected PIS and COFINS unduly.

Such a request, as stated in the Clarification on the judgment (page 225 of the decision), was not analyzed by the Ministers of the Supreme Court, since it had not been previously done in the course of the lawsuit, but the possibility of this demand by means of Motion for Clarification was admitted.

Thus, to date, those taxpayers who do not yet have lawsuits on this discussion may also file legal proceedings for the exclusion the ICMS from the PIS and COFINS calculation basis, as well as for obtaining recognition of the undue collection in the past, with the purpose of reimbursement or offsetting the amounts paid in excess.

Finally, we point out that an analysis of the STF jurisprudence reveals that the modulation of the effects of decisions such as these has been admitted in exceptional cases and, when approved, usually limits the results of the judgment of merit to protect those who already ongoing lawsuits on the date in which the thesis was set.