In March/2017, the STF judged Theme 69 and established, in terms of General Repercussion, the thesis according to which “ICMS does not form the calculation basis for the incidence of PIS and Cofins”.
Given the immediate and universal effect of the STF decision, many taxpayers began to exclude ICMS from the PIS/Cofins tax base in the months immediately following, even though they were aware that current legislation determined otherwise.
The strategy was simple: defend oneself based on the erga omnes and immediate effects of the decision issued by the Supreme Court.
Now, the Judiciary begins to analyze, and does so based on the assumption that the CDA (Active Debt Certificate) enjoys liquidity and certainty, and therefore, it is the taxpayer’s duty to demonstrate that there was an excess collection of taxes, with the indication that the ICMS was included in the PIS/Cofins calculation basis.
Last March, when reviewing an Appeal in Motion to Stay Enforcement, the Federal Regional Court of the Third Region (TRF-3rd Region) upheld the collection of the tax, arguing that taxpayers should not simply argue the Supreme Federal Court’s decision in the case of Topic 69; they must also provide evidence to prove the excessive collection of taxes. In other words, additional care (accounting, supporting documentation, and expert evidence) will be essential for the defense of those who failed to collect PIS/COFINS on the ICMS portion since March 2017.
