On May 30, 2023, Law No. 14,592/2023 was published, which began to provide that the Tax on the Circulation of Goods and Services (ICMS) can no longer form the basis for calculating the PIS and COFINS credit on the acquisitions of goods.

There is a discussion regarding the validity of this rule, whether it should be applied from May 30, 2023 or from August 30, 2023, due to the ninety-simal precedence, but the fact is that the ICMS highlighted in the Invoice for the acquisition of merchandise should be excluded from PIS and COFINS credit.

According to the explanatory memorandum of Provisional Measure No. 1,159/2023, the Federal Government justifies the prediction as a way of mitigating the economic effects resulting from the STF judgment in Topic No. 69 – RE No. 574,706, which established the exclusion thesis from ICMS due by the legal entity in the calculation base of PIS and COFINS, under the analogy that if the ICMS is not included in the calculation base of the aforementioned social contributions, the calculation of credits relating to previous operations must also be carried out excluding the tax .

From our point of view, there is no correlation between the Supreme Court’s decision of general repercussion, which deals with the concept of gross revenue, and the credit basis of social contributions levied on the acquisition of goods, as stated by the Attorney General’s Office itself. of the National Treasury (PGFN) through Opinion SEI 14,483/2021 and, subsequently, by the Brazilian Federal Revenue Service through the publication of IN 2,121/2022, which determined that ICMS should not be excluded from PIS and COFINS credit.

There is a clear violation of the social contribution rules, provided for in Laws Nos. 10,637/2002 and 10,833/2003, since the PIS and COFINS credit is calculated on the acquisition cost, which also includes the value of ICMS levied on the operation, therefore, it is clear that the tax should not be removed from the credit calculation basis.

Therefore, the command of legislation appears to be merely collection, violating the non-cumulative nature, constitutionally foreseen, as well as the principles of reasonableness and equality.

Our tax team is available to provide clarifications and align strategies on the topic, as this change in the law will have a major impact on companies.

Sincerely,
Granda Advogados