The 1st Section of the Brazilian Superior Court of Justice (STJ), under the repetitive appeals procedure (Theme 1373), established the understanding that non-recoverable IPI does not form part of the calculation base of PIS and Cofins credits in acquisitions of goods intended for resale.
The decision was rendered in the judgment of REsp No. 2.198.235/CE, reported by Justice Maria Thereza de Assis Moura.
Although adopting a position unfavorable to taxpayers, the panel set a temporal limitation on the application of the ruling, determining that the thesis shall apply only to transactions carried out as of December 20, 2022, the date of entry into force of Normative Instruction RFB No. 2.121/2022.
Thesis Established by the STJ
In its ruling, the 1st Section concluded that, under the non-cumulative regime of PIS and Cofins, the amount of IPI that cannot be recovered by the taxpayer does not compose the calculation base of credits when incurred in the acquisition of goods for resale.
Accordingly, for purposes of calculating contribution credits, the amount corresponding to non-recoverable IPI must be excluded from the credit base.
As the case was decided under the repetitive appeals mechanism, the understanding is binding on lower courts and administrative tax proceedings, guiding the resolution of similar cases.
Temporal Modulation to Avoid Retroactive Charges
During the proceedings, Justice Paulo Sérgio Domingues, in a concurring opinion, agreed with the reporting justice but proposed an addition to limit the effects of the ruling over time.
According to the justice, until the issuance of Normative Instruction RFB No. 2.121/2022, the Federal Revenue Service itself allowed the inclusion of non-recoverable IPI in the calculation base of PIS and Cofins credits. This justified the establishment of a temporal cutoff to prevent retroactive assessments against taxpayers.
This proposal was accepted by the reporting justice and the remaining members of the panel, thus establishing that the new interpretation applies only to transactions carried out as of December 20, 2022.
Context of the Controversy: Effects of the “Thesis of the Century”
The discussion arises within the broader context of interpretative changes following the judgment of the so-called “Thesis of the Century” (Theme 69/STF), which determined the exclusion of ICMS from the PIS and Cofins calculation base.
Following that precedent, several taxpayers maintained indirect taxes in the credit calculation base, which, in practice, resulted in a significant reduction in the amount of contributions due.
The Federal Revenue Service subsequently acted to remove taxes from the credit base, initially through Normative Instruction RFB No. 2.121/2022, which excluded non-recoverable IPI, and later through Law No. 14.592/2023, which removed ICMS from the PIS and Cofins credit base.
Legal Debate: Cost of Goods and Non-Cumulativity
Part of the legal doctrine argues that excluding non-recoverable IPI from the credit base may violate the logic of non-cumulativity of the contributions.
This is because, when IPI is not recoverable by the purchaser, the amount of the tax becomes part of the cost of acquisition of the goods. This cost is then incorporated into the sale price, forming part of the company’s gross revenue, and thus becoming subject to PIS and Cofins taxation.
From this perspective, preventing the recognition of credits over such cost could generate an undesirable cumulative effect, an argument used by taxpayers to challenge the legality of the change introduced through a normative instruction, which, according to this view, should only be implemented by formal legislation.
Practical Impacts for Taxpayers
The STJ’s decision is expected to have a significant impact on the calculation of PIS and Cofins credits under the non-cumulative regime, particularly for companies engaged in trading and resale activities.
Key practical effects include:
- the impossibility of including non-recoverable IPI in the calculation base of PIS/Cofins credits on purchases for resale;
- the application of the ruling only as of December 20, 2022, preventing retroactive charges;
- uniformization of case law, due to the binding nature of the repetitive appeals mechanism;
- the potential continuation of legal challenges regarding the validity of the regulatory change, particularly under the principle of non-cumulativity.
Conclusion
The judgment of Theme 1373 by the STJ consolidates a restrictive interpretation regarding PIS and Cofins crediting, by excluding non-recoverable IPI from the credit calculation base in resale transactions.
However, the temporal limitation established by the Court mitigates the impacts of the decision, by preventing retroactive assessments and preserving legal certainty for taxpayers who followed the interpretation previously accepted by the Federal Revenue Service.