Operations in which the respective credit is not recoverable by legal determination allow their values to generate PIS and Cofins credits for offsetting future debts of those social contributions, as authorized by Laws No. 10,637/2002 and 10,833/2003, Decree No. 4,524/2002, and Normative Instructions SRF 247/2002, 404/2004, and 1,911/2019 (RFB).
However, recently, Normative Instruction RFB No. 2,121/2022 was issued, which restricted the use of PIS and Cofins credits generated from non-recoverable IPI by the taxpayer, resulting in an undue increase in those social contributions without prior authorization from the law.
Cosit Consultation Solution No. 579, of December 20, 2017, recognized that the non-recoverable IPI highlighted by suppliers on sales invoices is part of the acquisition value of goods intended for resale for the purpose of calculating the Contribution for PIS/Pasep and Cofins credits in the non-cumulative system.
This irregular procedure by the Federal Revenue was inspired by Provisional Measure No. 1,159, of January 12, 2023, which modified the rules for using ICMS credits in the calculation of PIS and Cofins credits. Since ICMS cannot generate credits for the mentioned social contributions, according to the tax authority’s understanding, neither can IPI.
However, on the contrary, the Federal Constitution does not allow tax rules to be changed to increase taxes without a specific law authorizing such a burden.
In this case, there is a provisional measure authorizing the removal of ICMS from the calculation of PIS and Cofins, but there is no norm of equal hierarchy determining that this restriction also applies to IPI credits, a circumstance that reveals a violation of the tax principles of legality and typicality.
This irregularity justifies the judicial challenge of this modification, illegally established by RFB Normative Instruction No. 2,121/2022, to authorize the use of non-recoverable IPI credits in the calculation of PIS and Cofins.