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 over the exclusion of ICMS – a thesis expected to cost R$ 250 billion for the Federal Government.
The news is from Valor Econômico. The 4th Panel determined that the Federal Revenue Service may only charge Income Tax (IRPJ) and CSLL at the time of approval of the tax offset, and not at the end of the judicial proceeding (res judicata).
The article by Beatriz Olivon explains that the difference between the two periods may reach ten years.
There are five years for the taxpayer to indicate the tax offset and another five for the Federal Revenue Service to approve it. In the case of the exclusion of ICMS from PIS and Cofins, there is also the discussion regarding the calculation of the credit, as to whether it should be based on the state tax effectively paid or on the amount highlighted in the invoice, which is greater.
The Federal Revenue Service charges 34% of IRPJ and CSLL on the understanding that the tax credits represent an increase in equity. According to the agency, taxation must occur upon the res judicata of the action, even if the decision merely recognizes the right to offset and does not determine the amount of the credit to be used.
This understanding is set out in Divergence Ruling Cosit No. 19, of 2003, and in Consultation Ruling Disit SRRF No. 233, of 2007.
The taxpayer, in turn, advocates the moment of approval of the tax offset, since after the end of the proceeding it is still necessary to request the qualification of the credit and wait for the approval of the settlement of accounts by the Federal Revenue Service.
At the TRF, the 4th Panel analyzed the case of a chemical industry company (case No. 5033080-78.2019.4. 03.0000), which disputed PIS and Cofins credits resulting from the exclusion of ICMS. Under the decision, “in the absence of liquidity of the tax credit recognized in the writ of mandamus, the characterization of the legal or economic availability of income as the triggering event of the IRPJ and the CSLL shall occur only at the moment of approval of the offset by the Tax Authorities”.
In her vote, the case rapporteur, Appellate Judge Marli Ferreira, also considered that, in the specific case, of a credit arising from the inclusion of ICMS in the calculation basis of PIS and Cofins, there is “special relevance”, since the taxpayer and the Revenue Service disagree as to which amount of the state tax should be excluded from the basis.
The Appellate Judge decided in the same way in a case judged in March, which became res judicata due to loss of object (case No. 5004749-52.2020. 4.03.0000). The request was against the charging of IRPJ, CSLL and PIS and Cofins on credit amounts. Access here the full article from the newspaper.Source: Valor Econômico
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