Last week, the Superior Court of Justice (STJ) adjudicated significant tax issues with binding effects on all judges and courts under the systematic of repetitive appeals.
We have prepared the following alert, summarizing the main decisions applicable to different sectors of the economy.
Attention for those who:
- Are tax substituted for the State VAT (ICMS);
- Have recovered tax credits updated by SELIC rate;
- Are or intend to enter into tax installment plans;
- Pay additional hazard pay to employees;
STJ modulates the effects of the decision excluding ICMS-ST from the PIS/Cofins base to march 2017
The 1st Section of the Superior Court of Justice (STJ) decided that the Theme 1125 of Repetitive Appeals, in which the Court determined that the ICMS due on Tax Substitutions (ICMS-ST) should not be included in the PIS/COFINS calculation base, will produce effects as of March 15, 2017.
The date is the same as that defined by the Supreme Federal Court (STF) as the milestone for excluding ICMS from the PIS/COFINS calculation base, known as the "thesis of the century."
The decision was made in the context of a Motion for Clarification and the Reporting Minister, Gurgel de Faria, clarified that "the modulation of the effects of the present thesis will take effect on March 15, 2017, the date of the judgment of Theme 69, except for judicial and administrative actions filed up to the date of the session in which the judgment was delivered."
The modulation, as in the case of the thesis of the century, also excepted taxpayers who had filed judicial and administrative actions by March 15, 2017, allowing them to recover credit for amounts paid up to five years before filing their individual actions.
STJ decides that ICMS-ST does not generate PIS/Cofins tax credits
The 1st Section of the Superior Court of Justice (STJ) decided that the ICMS-ST that is reimbursed to the seller by the acquirer of the goods should not generate PIS/COFINS credits. The decision was made under repetitive appeals and, therefore, has binding effects – Theme 1231 of Repetitive Appeals.
The "forward" tax substitution method, which was the subject of the case analysis, involves the payment by a particular taxpayer in advance, acting as a tax substitute, of the ICMS that would be due in subsequent stages. When acquiring goods subject to this system, the substituted company reimburses the ICMS-ST paid by the substitute.
The substituted taxpayers argued that the ICMS-ST reimbursement would be part of the cost of acquisition of the goods purchased, thus generating the right to PIS/COFINS credits.
However, the prevailing position brought by the Reporting Minister Mauro Campbell Marques understood that the credit is not possible because the ICMS-ST is not subject to previous taxation by the contributions and is not part of the cost of the acquired goods.
STJ decides that interest is subject to PIS/Cofins
The 1st Section of the Superior Court of Justice (STJ) decided that the amounts related to interest (including SELIC rate) on tax refunds, the return of judicial deposits, or late payments by customers are subject to PIS/COFINS. The judgment was made under repetitive appeals and must be observed by all judges and courts – Theme 1237.
The Reporting Minister, Mauro Campbell Marques, understood that the interest rate, due by force of law or contract, whether tied to monetary correction or not, has the nature of gross revenue, thus falling within the constitutional concept of the calculation base for PIS and COFINS contributions, regardless of its accounting regime.
This understanding, to some extent, contradicts the STF's decision in Theme 962, which stated that SELIC has a compensatory nature, restoring the value of money over time, and is thus not subject to IRPJ and CSLL taxation.
Taxpayers expect that the same reasoning will be applied to PIS/COFINS in a future STF analysis of the matter.
STJ decides that subordinate rules can define limits for installment programs
The 1st Section of the Superior Court of Justice (STJ) decided that subordinate regulations (such as ordinances and normative instructions) can define the limits of amounts for the granting of installment plans for payment of taxes, except when the law defines a maximum amount and the act sets a lower amount – Theme 997. The thesis established by the Court will have binding effects on all judges and courts.
STJ decides that hazard pay is subject to social security contributions
The 1st Section of the Superior Court of Justice (STJ) decided that the amounts paid by companies to their employees as hazard pay are subject to the incidence of social security contributions on the payroll – Theme 1252.
The Ministers unanimously understood that the hazard pay has a remunerative nature, leading to the incidence of the respective taxes. The decision was made under repetitive appeals, with binding effects.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.