Published on the Federal Revenue Service website was Internal Consultation Ruling Cosit No. 13, of October 18, 2018, which provides for the criteria for excluding ICMS (state value-added tax) from the calculation base of the Contribution to PIS/Pasep and the Contribution for the Financing of Social Security (Cofins), under the cumulative or non-cumulative regime, in light of the judgment of Extraordinary Appeal No. 574,706/PR by the Federal Supreme Court (STF).
Among other provisions, SCI Cosit No. 13/2018 establishes that:
- The amount to be excluded from the monthly calculation base of the contribution is the monthly value of the ICMS payable assessed by the legal entity, referring to the same assessment period as the Contributions;
- The monthly value of the ICMS payable must be segregated among the various monthly calculation bases of the contributions, since in the bookkeeping of the contributions the legal entity assesses various calculation bases, according to the tax situation code (CST) assigned to the revenues earned;
- The aforementioned segregation of the monthly ICMS payable, for purposes of appropriating the portion to be excluded in each of the calculation bases of the contributions, will be determined based on the percentage relationship existing between the gross revenue referring to each of the tax treatments (CST) corresponding to the contributions and the total gross revenue, earned in each month;
- For purposes of surveying the amounts of ICMS payable, assessed and recorded by the legal entity, the amounts assessed in the digital tax bookkeeping of ICMS and IPI (EFD-ICMS/IPI) should preferably be considered.
The aforementioned SCI aims to clarify the procedures to be adopted within the scope of the Federal Revenue Service regarding compliance with final and unappealable judicial decisions on the matter.
It should be emphasized that, under the terms of Article 19 of Law No. 10,522, of 2002, decisions of the STF unfavorable to the National Treasury, under the general repercussion procedure, only bind the Federal Revenue Service broadly and definitively with respect to the constitution and collection of tax credits, as well as in decisions on the matters judged, after the manifestation of the Office of the Attorney General of the National Treasury.
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