As we recently reported, in July, the Brazilian Federal Revenue (RFB) issued the Opinion COSIT No. 10, stating that the ICMS should be excluded from the calculation of the credits on the acquisitions of inputs, as an equalization of taxation, given the judgment of Extraordinary Appeal 574,706 by the Supreme Court (STF).
Such understanding, however, distorted what was analyzed and discussed in said precedent, in which the Supreme Court has never stated that the ICMS would not be comprised within the price or value of the goods, but rather that the ICMS does not represent the seller's revenue.
This opinion has been submitted for analysis by the Attorney General of the National Treasury (PGFN), which recently issued the Opinion No. 14.483/2021, concluding, however, differently than the Federal Revenue's argument, in the sense that the ruling issued by the Supreme Court does not enable tax authorities to proceed with the recalculation of the credits on acquisitions, and that such issue was never discussed in the records of the Extraordinary Appeal.
In this Opinion, the National Treasury also mentions the Opinion No. 12.943/2021, in which it expressly mentions that the RFB's understanding is not supported by the crediting model of PIS and COFINS, as defined by the Constitution and federal laws regarding such contributions.
Furthermore, the document states that any change in the PIS/COFINS credit system would depend on a competent legislative change.
This Opinion represents a positive position of the Tax Authorities, and a rationalization of the taxation and the judicial litigation, observing the legality. We understand that by this Opinion, many discussions and lawsuits will likely be avoided.
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.