The Supreme Court (STF) included in the trial docket of August 18th the analysis of constitutionality of the levy of PIS and COFINS on revenues from the lease of real state and movable property. The lease of real estate is discussed in extraordinary appeal (RE) No. 599,658 (Leading case No. 630) and the lease of movable property in RE No. 659,412 (Leading case No. 684), with general repercussion recognized since 2013.
In both cases, taxpayers claim that the PIS and COFINS' calculation basis would be limited to the concept of invoicing/billing, which correspond to the result of sale of goods or rendering of services. Therefore, the leasing activity would not be included in such a concept, which would prevent the levying of such Contributions.
Also, taxpayers claim that the original wording of the Article 195, I, of the Federal Constitution (CF) determined the invoicing/billing as the calculation basis of such social contributions and that, even after the Constitutional Amendment (EC) No. 20/1998 has included the gross revenue as calculation basis, broadening the potential levy of PIS and COFINS , there was no law authorizing such taxation.
Only in 2014, with the leading cases already in progress, Law No. 12,973/2014 was published, including gross revenues as the calculation basis of PIS and COFINS under the regime of the EC No. 20/1998.
We cannot predict at this time if the judgment will be limited to the period prior to Law No. 12,973/2014 or if it will address the issue of PIS and COFINS credits on rental expenses, allowed since the enactment of Laws No. 10,637/2002 and 10,833/2003. The possibility of a broader decision brings with it the concern with the modulation of effects, preventing companies which have not filed their lawsuit from benefiting from the decision, if favorable to the taxpayers.
We are available to answer any questions about the matter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.