The Supreme Federal Court of Brazil, when judging Extraordinary Appeal 593.544 (Topic 504), allowed, by a majority vote (6×4), the exclusion of the presumed IPI (Tax on Industrialized Products) credit from the basis of calculation for PIS (Social Integration Program) and Cofins (Contribution for Social Security Financing).
The presumed IPI credit was established by Law 9.363/1996 as a fiscal incentive measure for companies that produce and export Brazilian goods. This mechanism allows companies to obtain a reimbursement of PIS and Cofins, which are levied on the purchase of inputs used in the production of goods destined for export.
Justice Luís Roberto Barroso, the rapporteur of the case, advocated for the exclusion of the presumed IPI credit from the basis of calculation for PIS and Cofins. He argued that, although the presumed credit represents revenue for companies, it does not fit the definition of turnover. This is because the presumed credit results from a fiscal incentive intended to relieve the burden on exports, not arising from the sale of products or provision of services. Justice Barroso’s vote was followed by Justices Edson Fachin, Alexandre de Moraes, Dias Toffoli, Cristiano Zanin, and Cármen Lúcia.
Justice Edson Fachin, although agreeing with the rapporteur on the merits, highlighted that the non-incidence of PIS/Cofins on the presumed IPI credit is related not to the concept of turnover but to the fact that this credit arises from exports. This decision benefits companies that produce and export Brazilian goods, which are entitled to the credit, as provided in Article 1 of Law 9363/1996.
He had proposed the following formulation: “The presumed IPI credits, established by Law No. 9.363/1996, do not integrate the basis of calculation for the contribution to PIS and Cofins, as they embody revenues resulting from exports whose taxation is prohibited by the rule of Article 149, § 2º, I, of the Federal Constitution.”
However, the statement proposed by Justice Barroso prevailed: “The presumed IPI credits, established by Law 9.363/1996, do not integrate the basis of calculation for the contribution to PIS and Cofins, under the cumulative assessment system (Law 9718/1998), as they do not fit the constitutional concept of turnover.”
With the decision having general repercussion, the understanding of the STF is now of mandatory application to all courts in the country and also to the Administrative Council of Fiscal Appeals (Carf), with significant implications for Brazilian companies, especially those involved in export activities. This will require careful analysis of their operations and fiscal obligations. The clarity brought by the STF on this important tax issue is a landmark for the business sector and for legal certainty in Brazil.