A exclusão do ICMS do PIS e Cofins

A exclusão do ICMS do PIS e Cofins

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Pis e Cofins não terão mais taxa da ICMS e empresas podem recorrer no judiciário

As leis complementares 7/70 e 70/91 instituíram, respectivamente, as contribuições do PIS e da Cofins, as quais estabeleceram a incidência das mesmas sobre o faturamento da pessoa jurídica (base de cálculo das contribuições). Para os fins legais, o conceito de faturamento, ou seja, da base de cálculo dos tributos, abrange a receita bruta obtida na venda de mercadorias e serviços pela pessoa jurídica, descontadas tão somente os valores referente ao IPI, as vendas canceladas, devolvidas e os descontos concedidos.

Isso verificado, tem-se que a lei não excluiu da base de cálculo do tributo o valor devido a título de ICMS, o qual, portanto, comporia o conjunto de valores entendidos como integrantes do faturamento da empresa. Ocorre, no entanto, que o ICMS, dada a sua natureza tributária, configura-se como despesa e não como receita, não revelando qualquer medida de riqueza relativa às hipóteses de incidência destas contribuições e, portanto, a sua inclusão na base de cálculo do PIS e da Cofins caracteriza violação constitucional e legal ao conceito de faturamento. Diante deste fato, temos atualmente um enorme numero de processos judiciais que foram ajuizados pelos contribuintes para fins de declarar a ilegalidade da inclusão do ICMS na base de calculo do Pis e Cofins.

Este assunto é de tamanha importância, que o Supremo Tribunal Federal reconheceu a repercussão geral da matéria e por conta disso, elegeu um dos recursos como repetitivo da controvérsia. Isso significa dizer que, após o julgamento deste recurso, a decisão proferida deverá ser adotada a todos os demais processos já ajuizados perante o Poder Judiciário, para que todos tenham a mesma sentença.

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O STF decidiu em março – mas somente agora em setembro houve confirmação por ocasião do julgamento dos embargos de declaração opostos -, que o governo federal não pode incluir o Imposto sobre Circulação de Mercadorias e Serviços (ICMS) na base de cálculo das contribuições para o Programa de Integração Social (PIS) e para a Contribuição para o Financiamento da Seguridade Social(Cofins) .

A decisão da Suprema Corte terá repercussão geral no Judiciário, ou seja, a partir de agora, as instâncias inferiores da Justiça também terão de seguir essa orientação. Diante desta decisão, as empresas que se encontram nesta situação, ainda podem entrar com ação judicial pois ainda não ocorreu a modulação dos efeitos da decisão. Todas as vezes que isso acontece, os tribunais, em regra, modulam os efeitos da decisão, ou seja, podem determinar que apenas os contribuintes que entraram com ação judicial antes da data do julgamento final é que terão direito de reaver o que pagaram a mais nos últimos 5 anos. Quem não entrou com ação antes, perde esse direito, mesmo que entre com ação depois.

Por esta razão, é muito importante que todas as empresas que se encontrem nesta situação ingressem com a medida judicial cabível na maior brevidade possível para proporcionar a garantia do direito à exclusão do ICMS da base de cálculo do PIS e da COFINS; evitar a prescrição e a decadência dos pagamentos já efetuados; e possibilitar a restituição de todos os valores pagos a maior a título de Pis e Cofins nos últimos 5 anos por terem incidido sobre o valor do ICMS (que na verdade constitui uma despesa para a empresa).

Fonte: Contábeis 
Data: 10 de novembro de 2017
Acesso: 10 de novembro de 2017

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