The 1st Section of the Brazilian Superior Court of Justice (STJ), in the judgment of Special Appeals No. 2.151.903/RS under the repetitive appeals procedure (Theme 1312), established the understanding that PIS and Cofins amounts are included in the calculation base of Corporate Income Tax (IRPJ) and the Social Contribution on Net Profits (CSLL) under the presumed profit regime (Lucro Presumido).
The decision was unanimous and is binding on lower courts and administrative tax proceedings.
STJ’s Understanding
According to the reporting justice, by opting for the presumed profit regime, the legal entity adheres to a simplified system for determining taxable income, as provided by statutory law, particularly Law No. 9.718/1998.
Under this regime:
- the IRPJ and CSLL tax base is determined by applying presumed profit margins to gross revenue;
- the company is not required to maintain detailed accounting records for tax purposes;
- in return, it cannot exclude revenues or deduct amounts not expressly provided for under the regime’s rules.
For the reporting justice, allowing the exclusion of PIS and Cofins would effectively combine elements from different tax regimes, which is not permitted under the applicable legislation.
The decision followed a similar rationale to that adopted in Theme 1240, in which the Court held that ISS is also included in the IRPJ and CSLL tax base under the presumed profit regime.
Taxpayers’ Arguments
The appellant argued that PIS and Cofins do not constitute the company’s own revenue, but rather amounts collected and remitted to the tax authorities, and therefore should not be included in the calculation base of other taxes.
This argument drew inspiration from the precedent established by the Brazilian Supreme Federal Court (STF) in Theme 69, which held that ICMS should not be included in the calculation base of PIS and Cofins.
However, the STJ held that the legal situations are not equivalent, as the presumed profit regime has its own rules for determining taxable gross revenue, as defined by ordinary legislation.
No Modulation of Effects
The Court also decided not to modulate the effects of the ruling, on the grounds that there was no change in established case law on the matter.
Accordingly, the decision applies immediately to all pending judicial and administrative cases addressing the same issue.
Impacts for Taxpayers
According to experts, the decision reinforces the interpretation that, under the presumed profit regime, the concept of gross revenue for IRPJ and CSLL purposes includes taxes levied on sales, such as PIS and Cofins.
From a practical standpoint, the precedent:
- increases the effective tax burden for companies subject to the presumed profit regime;
- reduces the viability of arguments seeking to exclude taxes from the IRPJ and CSLL calculation base under this regime;
- consolidates an important jurisprudential position for tax planning, particularly for companies evaluating the choice between the presumed profit and actual profit regimes.
The ruling also occurs in the context of recent discussions regarding increased taxation under the presumed profit regime, particularly concerning the additional IRPJ surcharge applicable to quarterly revenues exceeding certain thresholds.
Conclusion
With the establishment of the thesis under Theme 1312, the STJ has consolidated the understanding that PIS and Cofins are included in the calculation base of IRPJ and CSLL under the presumed profit regime, reinforcing the principle that opting for this simplified regime entails the full adoption of its calculation rules, without the possibility of exclusions not expressly provided by law.