In a plenary session held in June/2023, the Federal Supreme Court (STF) concluded the judgment of RE 609096 (General Repercussion, Theme 372), at which time the following was defined:
“Gross operating revenues arising from the typical business activity of financial institutions are included in the PIS/COFINS calculation basis charged in relation to those under Law No. 9,718/98, even in its original wording, subject to the exclusions and deductions legally prescribed.”
The decision was based on the vote of Min. Dias Toffoli, according to which the operating revenue of financial institutions is not restricted to bank fees and other similar charges, but should also be composed of financial intermediation revenue, precisely because they are typical of this segment, qualifying as revenue, in view of the reference that Law No. 9,718/98 makes to gross revenue, as defined in art. 12 of Decree-Law 1,598/77.
The decision did not cover and, consequently, did not put an end to other theses that seek to eliminate the incidence of Pis/Cofins on certain income that, despite being financial, does not arise from typical activities (e.g., JSCP received by financial institutions).
The same applies to those equivalent to financial institutions (e.g. brokerages and leasing).
On the same occasion, the STF judged the Statement of Clarification filed in RE 400,479 (AXA Case), in which the Court ended up understanding that the premiums charged by insurers when selling policies constitute operating revenue as it is typical of the activity, and, as such, is equivalent to revenue, which is why Pis/Cofins should be levied on said revenue.
In the case of insurance companies, we still have to wait to see what the Supreme Court’s position will be regarding whether or not Pis/Cofins will be levied on revenues arising from the application of technical reserves, which was not clear in the aforementioned judgment.
