The 2nd Panel of the Superior Court of Justice (STJ) has unanimously ruled that the differential ICMS rate (DIFAL) should not be included in the calculation bases of PIS and COFINS contributions. This decision represents a significant development for taxpayers and consolidates the Court’s jurisprudence on the matter.
The ICMS DIFAL applies to interstate transactions involving goods and merchandise destined for final consumers who are not taxpayers of the tax. It corresponds to the difference between the interstate rate and the internal rate of the destination state.
The STJ’s decision aligns with the precedent established by the Federal Supreme Court (STF) in Theme 69 (RE 574,706)—the so-called “thesis of the century”—which held that the ICMS highlighted on invoices does not constitute gross revenue/turnover for companies and, therefore, must be excluded from the PIS and COFINS calculation bases.
Relying on this precedent, the STJ extended the reasoning to the ICMS DIFAL, finding that this amount also does not constitute revenue or turnover for the company, but rather a mere transfer of funds to the state tax authorities.
As a result, both Public Law Panels of the STJ have aligned their positions, establishing a uniform jurisprudence in favor of taxpayers.
Effect Modulation
Following the STF’s ruling in Theme 69, the STJ has determined that the effects of its decision shall apply as of March 15, 2017, subject to the following exceptions:
- Judicial actions filed by that date; and
- Administrative protocols with the same subject matter filed by March 15, 2017.
Additionally, the Office of the Attorney General of the National Treasury (PGFN) has included this matter in its list of cases for which it will waive the right to contest or appeal, as per Opinion SEI No. 71/2025. This means that the Treasury will not oppose cases involving the exclusion of DIFAL from the PIS/COFINS calculation bases, provided that the effect modulation is observed.
Practical Recommendations
- Companies that have paid PIS/COFINS based on the DIFAL amount may seek refunds or offsets of the overpaid amounts, respecting the five-year statute of limitations.
- It is recommended that companies review their current tax calculations to align them with the consolidated understanding and avoid overpayments.
For more information, or to assess the feasibility of credit recovery, please contact our office.