The Superior Court of Justice (STJ) in Brazil, in a recent decision (REsp 2078111/SC and 2080144/SC), has confirmed the possibility for taxpayers to claim credits of PIS and Cofins related to the Tax Substitution of ICMS (ICMS-ST). According to the court, the amounts of ICMS-ST are inherently linked to the cost of product acquisition, thus originating the right to credit. It’s important to note that this decision was unanimous.
However, the issue of deducting PIS and Cofins credits on ICMS-ST still generates controversy within the STJ. While the First Chamber has consolidated the view that it is possible to claim PIS and Cofins credits on ICMS-ST – even unanimously ratifying this understanding (Internal Appeal in Special Appeal 1.525.939/PR), the Second Chamber opposes such utilization.
The prevailing reasoning in the First Chamber is that, when the substituted taxpayer acquires the goods, they pay not only for the product but also the ICMS-ST. It’s undeniable that the tax collected in the previous stage is incorporated into the subsequent acquisition cost. Furthermore, the reporting judge, Minister Regina Helena Costa, highlighted that the right to obtain PIS/Cofins credits is not tied to or dependent on the incidence of these contributions on the value of the ICMS-ST, which was collected in the previous stage by the tax substitute.
Thus, the ICMS-ST is recognized as a component of the acquisition cost. Since PIS and Cofins are levied on the subsequent sale revenue of these goods, these contributions undoubtedly tax the economic repercussion of the pre-payment of ICMS-ST.
The decision cited by the STF, in ADI 1.851-4/AL, reveals the definitive nature of the substitution tax ICMS for the substituted taxpayer. This understanding reinforces that the ICMS-ST should be included in the acquisition cost of the goods acquired under this regime.
Given that the ICMS-ST is part of the cost of goods, the right to PIS and Cofins credit on this value has a legal basis in the legislation that regulates the non-cumulativity of these contributions.
With this new decision favoring taxpayers, there is an observed trend of favorable understanding by the First Chamber of the STJ. However, to achieve uniformity in jurisprudence, it is essential that this issue be analyzed by the First Section, which encompasses both public law chambers of the court.