The Superior Court of Justice (STJ) reaffirms its understanding that the tax benefit consisting of the maintenance of PIS and Cofins credits – even if the company’s sales and resales were not burdened by the levy of these contributions under the single-phase system – extends to legal entities not linked to the Tax Regime for Incentive to the Modernization and Expansion of Port Structure (Reporto).
The panel reformed a ruling of the Federal Regional Court of the 5th Region (TRF5) that denied the benefit to a company on the understanding that the structural configuration of the single-phase levy system, by itself, would make it unfeasible to grant the credit provided for in Law 11,033/2004, which could not be extended to companies not covered by Reporto.
Article 17 of the law provides that sales made with suspension, exemption, zero rate, or non-levy of the contribution to PIS/Pasep and Cofins do not prevent the seller from maintaining the credits linked to these operations.
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Taxpayer wins dispute over PIS and Cofins credits
Before the STJ, the company argued that Law 11,033/2004 indistinctly assures taxpayers subject to the non-cumulative nature of PIS/Cofins the right to use the credit balance of these contributions, without restricting its reach, at any moment, to those linked to Reporto.
The reporting judge of the appeal recalled that the First Panel has already established the understanding that this tax benefit, even under the single-phase system, is not exclusive to taxpayers benefiting from Reporto.
She explained that the single-phase system constitutes a technique of single levy of taxation, with a more burdensome rate, exempting the other phases of the production chain.
In this system, according to her, the taxpayer is single, and the tax collected, even if the subsequent operations are not consummated, will not be refunded.
“It is irrelevant that the other links of the production chain are exempted from collection, with the exception of the producer or importer responsible for collecting the tax at a higher rate, this not constituting an obstacle for taxpayers to maintain the credits of all the acquisitions made by them,” she says.
Source: STJ
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