PGFN recognizes the right to PIS and COFINS credit on the full value of acquisitions, including ICMS

The Attorney General of the National Treasury (“PGFN”) issued a new opinion on the exclusion of ICMS from the PIS and COFINS tax bases, which gave more peace of mind to taxpayers subject to these contributions. Learn more by accessing the bulleting produced by our Tax Law team.

PGFN recognizes the right to PIS and COFINS credit on the full value of acquisitions, including ICMS

The Attorney General of the National Treasury (“PGFN”) issued a new opinion on the exclusion of ICMS from the PIS and COFINS tax bases, which gave more peace of mind to taxpayers subject to these contributions.

 Going against the flow of the conclusions of the Federal Tax Authority in its Opinion COSIT no. 10/2021 (which is discussed in the bulletin https://www.linkedin.com/pulse/receita-federal-reduz-os-cr%25C3%25A9ditos-de-pis-e-cofins-em-decorr%25C3%25AAncia-/?trackingId=g%2Bc8L%2BrKoloOQEBEbm8ODQ%3D%3D), the PGFN issued its Opinion no. 14,486 from 09.24.2021, wherein it brings its understanding that the tax base of PIS and COFINS credits to be leveraged by the taxpayers must include the ICMS amount, given that the decision uttered by STF acknowledging the removal of ICMS from the tax bases of PIS and COFINS do not extend to the assessment of the credits.

 The main grounds of this stance are (i) the absence of a legal basis for the exclusion of ICMS in the calculation of credits; and (ii) the impossibility of expanding the subject of STF’s ruling in Extraordinary Appeal No. 574.706, that was bound to analyze the constitutional concept of billing, for the purpose of defining the PIS and COFINS tax bases in the cumulative and noncumulative systems.

 This new understanding to which the PGFN subscribes provides greater legal certainty to taxpayers who are in the noncumulative system for the recovery of PIS and COFINS amounts unduly paid or overpaid, respecting the limits established in STF’s ruling, without impacting the credits already recognized in the past.

 However, in view of the divergence between the Federal Revenue and PGFN, we are left to wait for the unfolding of the stance of the federal tax authority in any monitoring actions it takes around this issue.

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