Article 13 of Law 10,925/2004, which provides for the accounting deduction, from the calculation base of PIS and Cofins, of the amounts passed on by an advertising agency to communication companies responsible for the broadcasting of advertising, has no retroactive effect.
Based on this understanding, the First Panel of the Superior Court of Justice (STJ) reformed a ruling of the Federal Regional Court of the 5th Region (TRF-5) that considered the retroactive application of Law 10,925/2004 possible and, therefore, set aside the demand for tax debts prior to its entry into force, which had been assessed without the deduction of the amounts passed on by an advertising agency to communication media and to suppliers as part of the services rendered to advertisers.
The appeal originated in an annulment action filed by the advertising agency under the argument that, in the performance of its activities, it acts, sometimes, as an intermediary agent of amounts passed on to third parties, such as the radio and television broadcasters – funds which could not be qualified as revenue, since they are not added to its estate.
The request for annulment of the tax credit was found partially well-founded in the first instance, in a judgment upheld by the TRF-5. For the court, the retroactivity of Law 10,925/2004 would have support in Article 106 of the National Tax Code, which provides for the application of a new law to a past act or fact in certain hypotheses – for example, when the law is expressly interpretative.
Still according to the TRF-5, the provision of the 2004 law came to recognize what was already a reality: the amounts received by an advertising agency from its clients and passed on to the communication media – which effectively broadcast the advertising – do not constitute its own revenue, since they only transit temporarily through its cash. Thus, these funds could not compose the calculation base of the contributions.
Distinction of taxes
Reporting justice of the appeal of the National Treasury at the STJ, Justice Gurgel de Faria emphasized that the literal text of Article 13 of Law 10,925/2004 establishes that the provision of the sole paragraph of Article 53 of Law 7,450/1985 is applicable in determining the calculation base of the contribution to PIS/Pasep and Cofins of advertising and publicity agencies, the use of the credit in relation to the excluded portions being prohibited.
Article 53, sole paragraph, of Law 7,450/1985, in turn, specifies that, in the case of advertising and publicity services, the amounts passed on to radio, television, newspaper and magazine companies are excluded from the calculation base of the Income Tax, with joint and several liability for proving the rendering of the services attributed to the paying legal entity and to the beneficiary.
“From what is observed, there is no question of a rule of an interpretative nature, in view of the very distinction of the taxes governed by Law 7,450/1985 and by Article 13 of Law 10,925/2004, whose calculation bases are not to be confused,” stated the reporting justice.
New milestone
According to Gurgel de Faria, it was only with the advent of Article 13 of Law 10,925/2004 that advertising companies were authorized the accounting deduction, from the calculation base of PIS and Cofins, of the amounts passed on to the communication media. Even so, by considering that the law had characteristics of an interpretative rule, the ordinary instances concluded that retroactive effect could be given to the legal text.
“However, because this is not the best understanding, the Treasury’s appeal must be granted to find the original claim unfounded as to the taxable events occurring before the beginning of the entry into force of the said Article 13,” concluded the reporting justice in reforming the ruling of the TRF-5.
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Source: STJ
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