{"id":3269,"date":"2026-03-24T10:21:35","date_gmt":"2026-03-24T13:21:35","guid":{"rendered":"https:\/\/oliveiraalves.com.br\/?p=3269"},"modified":"2026-04-08T16:52:55","modified_gmt":"2026-04-08T19:52:55","slug":"stj-afasta-inclusao-do-ipi-nao-recuperavel-na-base-de-creditos-de-pis-e-cofins-na-compra-para-revenda-tema-1373","status":"publish","type":"post","link":"https:\/\/oliveiraalves.com.br\/en\/stj-afasta-inclusao-do-ipi-nao-recuperavel-na-base-de-creditos-de-pis-e-cofins-na-compra-para-revenda-tema-1373\/","title":{"rendered":"STJ Excludes Non-Recoverable IPI from the PIS and Cofins Credit Base on Purchases for Resale (Theme 1373)"},"content":{"rendered":"

The 1st Section of the Brazilian Superior Court of Justice (STJ)<\/strong>, under the repetitive appeals procedure (Theme 1373)<\/strong>, established the understanding that non-recoverable IPI does not form part of the calculation base of PIS and Cofins credits<\/strong> in acquisitions of goods intended for resale.<\/p>\n

The decision was rendered in the judgment of REsp No. 2.198.235\/CE<\/strong>, reported by Justice Maria Thereza de Assis Moura<\/strong>.<\/p>\n

Although adopting a position unfavorable to taxpayers<\/strong>, the panel set a temporal limitation<\/strong> on the application of the ruling, determining that the thesis shall apply only to transactions carried out as of December 20, 2022<\/strong>, the date of entry into force of Normative Instruction RFB No. 2.121\/2022<\/strong>.<\/p>\n

Thesis Established by the STJ<\/strong><\/p>\n

In its ruling, the 1st Section concluded that, under the non-cumulative regime of PIS and Cofins<\/strong>, the amount of IPI that cannot be recovered by the taxpayer does not compose the calculation base of credits<\/strong> when incurred in the acquisition of goods for resale.<\/p>\n

Accordingly, for purposes of calculating contribution credits, the amount corresponding to non-recoverable IPI must be excluded<\/strong> from the credit base.<\/p>\n

As the case was decided under the repetitive appeals mechanism<\/strong>, the understanding is binding on lower courts and administrative tax proceedings<\/strong>, guiding the resolution of similar cases.<\/p>\n

Temporal Modulation to Avoid Retroactive Charges<\/strong><\/p>\n

During the proceedings, Justice Paulo S\u00e9rgio Domingues<\/strong>, in a concurring opinion, agreed with the reporting justice but proposed an addition to limit the effects of the ruling over time<\/strong>.<\/p>\n

According to the justice, until the issuance of Normative Instruction RFB No. 2.121\/2022<\/strong>, the Federal Revenue Service itself allowed the inclusion of non-recoverable IPI in the calculation base of PIS and Cofins credits. This justified the establishment of a temporal cutoff<\/strong> to prevent retroactive assessments against taxpayers<\/strong>.<\/p>\n

This proposal was accepted by the reporting justice and the remaining members of the panel, thus establishing that the new interpretation applies only to transactions carried out as of December 20, 2022<\/strong>.<\/p>\n

Context of the Controversy: Effects of the \u201cThesis of the Century\u201d<\/strong><\/p>\n

The discussion arises within the broader context of interpretative changes following the judgment of the so-called \u201cThesis of the Century\u201d (Theme 69\/STF)<\/strong>, which determined the exclusion of ICMS from the PIS and Cofins calculation base<\/strong>.<\/p>\n

Following that precedent, several taxpayers maintained indirect taxes in the credit calculation base<\/strong>, which, in practice, resulted in a significant reduction in the amount of contributions due<\/strong>.<\/p>\n

The Federal Revenue Service subsequently acted to remove taxes from the credit base<\/strong>, initially through Normative Instruction RFB No. 2.121\/2022<\/strong>, which excluded non-recoverable IPI, and later through Law No. 14.592\/2023<\/strong>, which removed ICMS from the PIS and Cofins credit base.<\/p>\n

Legal Debate: Cost of Goods and Non-Cumulativity<\/strong><\/p>\n

Part of the legal doctrine argues that excluding non-recoverable IPI from the credit base may violate the logic of non-cumulativity<\/strong> of the contributions.<\/p>\n

This is because, when IPI is not recoverable by the purchaser, the amount of the tax becomes part of the cost of acquisition of the goods<\/strong>. This cost is then incorporated into the sale price<\/strong>, forming part of the company\u2019s gross revenue<\/strong>, and thus becoming subject to PIS and Cofins taxation<\/strong>.<\/p>\n

From this perspective, preventing the recognition of credits over such cost could generate an undesirable cumulative effect<\/strong>, an argument used by taxpayers to challenge the legality of the change introduced through a normative instruction<\/strong>, which, according to this view, should only be implemented by formal legislation<\/strong>.<\/p>\n

Practical Impacts for Taxpayers<\/strong><\/p>\n

The STJ\u2019s decision is expected to have a significant impact on the calculation of PIS and Cofins credits<\/strong> under the non-cumulative regime, particularly for companies engaged in trading and resale activities<\/strong>.<\/p>\n

Key practical effects include:<\/p>\n