On October 1st, the Federal Supreme Court (STF) resumed the judgment on Topic 843 of general repercussion, which discusses the possibility of excluding presumed ICMS credits from the PIS and Cofins calculation base. After oral arguments, the trial was suspended, which is why there is still no definitive decision on the matter.

     The controversy consists of defining whether the presumed ICMS credits, granted by the States and the Federal District as tax incentives, can be considered revenue or turnover for the purposes of levying PIS and Cofins. In the virtual trial that began in 2021, a majority of 6 votes to 5 was formed for the exclusion of values from the contribution base. Minister Gilmar Mendes' request for prominence, however, took the case to the physical Plenary, causing the matter to remain unfinished.

     The discussion has a relevant impact on companies that benefit from these incentives. On the one hand, it is argued that the presumed credit represents a reduction in tax costs and not an entry of new wealth into assets, not falling within the constitutional concept of revenue. On the other hand, the Union argues that the benefit constitutes an economic advantage incorporated into the company's assets and, therefore, must be part of the PIS and Cofins calculation basis.

     In this scenario, the pending trial opens an opportunity for companies that use presumed ICMS credits to evaluate the adoption of legal measures to protect any right to recovery of amounts collected in the last five years.

     Caution is especially relevant given the possibility of modulating the effects of a possible decision favorable to taxpayers. Although it is not possible to anticipate the position that will be adopted by the STF regarding temporal effects, the Court's precedents in tax matters demonstrate that decisions with a relevant impact may have their effectiveness limited in time.

     Thus, before the conclusion of Theme 843, it is recommended that beneficiary companies carry out an individual analysis of the incentives used and the respective PIS and Cofins payments. Early filing may be relevant to prevent any future modulation from restricting the use of values relating to the period prior to the STF decision.

By Matheus Gehring