In a recent unanimous decision, the 1st Section of the Superior Court of Justice (STJ), under the repetitive appeals procedure, established that the tax-substituted entity is not entitled to PIS/Cofins credit on the reimbursement of ICMS Substitution Tax (ICMS-ST) paid to the tax-substitute. This decision, delivered by the rapporteur Minister Mauro Campbell Marques, is binding and must be followed by other courts and the Administrative Council of Tax Appeals (Carf).
The STJ’s decision clarifies that ICMS-ST does not form part of the calculation base for PIS and Cofins, nor is it considered a cost of acquiring the goods. Therefore, crediting the reimbursed amount is not permitted. This understanding is particularly relevant for sectors such as pharmaceuticals, beverages, and fuels, which frequently operate under the substitution tax regime.
In the “forward substitution” regime, the first company in the production or marketing chain is responsible for collecting the tax in advance. Subsequently, the substituted companies reimburse the ICMS-ST paid by the first company. These companies argued that the value of ICMS-ST was part of the acquisition cost of the goods, thus claiming the right to PIS/Cofins credit on this reimbursement.
However, rapporteur Minister Mauro Campbell Marques argued that, in the absence of taxation upon the goods’ exit from the substitute’s establishment, it is not possible to grant credit upon entry for the substituted acquirer. He emphasized that any credit granted in this situation would be fictitious and would lack specific legislation for its validation.
According to the minister, ICMS-ST is a tax collected in advance on future sales and not on the acquisition of goods, therefore not constituting an acquisition cost. This tax anticipation cannot generate PIS/Cofins credit at the next stage of the production or marketing chain.