Autorizado por decisão uso de crédito de PIS e Cofins sobre despesas

Autorizado por decisão uso de crédito de PIS e Cofins sobre despesas

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Uma sentença da Justiça Federal do Paraná garantiu a uma empresa o direito de usar créditos de PIS e Cofins sobre as despesas financeiras, geradas, principalmente, por empréstimos bancários. Essa é a primeira decisão de mérito da qual se tem notícia. Ainda cabe recurso.

Desde julho de 2015, por meio do Decreto nº 8.426, estão em vigor as alíquotas de 4% de Cofins e 0,65% de PIS sobre receitas financeiras. Contudo, não foi autorizado o uso de créditos sobre as despesas financeiras. A discussão tem um grande impacto financeiro porque, com a crise econômica, as empresas em geral têm registrado mais despesas do que receitas.

O advogado tributarista Maurício Faro, do BMA Advogados, responsável pelo processo, afirma que todas as companhias em regime não cumulativo podem ter interesse na discussão. “A depender da operação da empresa, a tomada de créditos pode ser mais vantajosa do que o não pagamento da alíquota”, afirma.

Na processo, o advogado alegou que o Decreto nº 8.426, de 2015, que restabeleceu as alíquotas justifica a tomada de créditos. “A proibição viola o princípio constitucional da não cumulatividade”, diz Faro.

A sentença da juíza federal substituta Thais Sampaio da Silva Machado, da 1ª Vara Federal de Curitiba, confirma a liminar concedida por ela em novembro do ano passado. Segundo a magistrada, a argumentação da Receita Federal no processo não anula a fundamentação apresentada pela companhia.

A Receita comparou o regime da não cumulatividade do PIS e da Cofins ao regime do IPI e ICMS. Para a magistrada, essa comparação seria equivocada. Isso porque, segundo a decisão “o PIS/Cofins não incide sobre operações, incide sobre a receita apurada mês a mês, sendo insuficiente admitir a não cumulatividade apenas sobre créditos físicos quando se tributam também as receitas financeiras”.

A magistrada também ressalta na decisão que “a captação de recursos no mercado é hoje imprescindível às operações ordinárias da grande maioria das empresas, pela necessidade de financiar o seu capital de giro”. Ainda segundo a juíza, o aumento do custo com o Decreto nº 8.426, de 2015, sem o creditamento da despesa anterior, “inevitavelmente implicará a repercussão ao consumidor final, ainda que não diretamente, como ocorre com o IPI/ICMS”.

Porém, a magistrada entendeu que a companhia não tem direito aos créditos dos últimos cinco anos porque a tributação das receitas financeiras voltou a ocorrer com o Decreto nº 8.426, de 2015, que tornou inconstitucional a impossibilidade de tomada de créditos no regime não cumulativo. “De duas, uma: ou não se tributa a receita, ou se concede o direito ao crédito”, diz.

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O advogado Maurício Faro afirma que a decisão enfrentou bem os argumentos do contribuinte e da Fazenda ao decidir a favor da empresa. “Com a edição do decreto que restabeleceu as alíquotas a relação ficou completamente desequilibrada sem a possibilidade de tomada de créditos das despesas”, afirma.

Especialista em direito tributário, o advogado Marcelo Annunziata, do Demarest Advogados, afirma que decisões que dão direito ao crédito são raras no Judiciário porque o juiz acaba por legislar ao decidir. Porém, elas seguem o princípio da não cumulatividade.

Segundo o advogado, a Constituição não definiu o que seria não cumulatividade. Apenas determinou que leis próprias poderiam estabelecer quais setores entrariam no regime. “Porém, a intenção do legislador seria evitar a tributação em cascata. No regime não cumulativo, a ideia é que se consiga descontar o tributo ou alguma despesa no caso do PIS e Cofins até chegar no consumidor final”, afirma.

Annunziata, contudo, afirma que seria mais seguro discutir apenas a não incidência das duas contribuições sobre as receitas financeiras, porque a medida não poderia ter sido adotada por meio de decreto.

O advogado Igor Mauler Santiago, sócio do Sacha Calmon – Misabel Derzi Consultores e Advogados, afirma que preferiu discutir as alíquotas instituídas e, em ações desvinculadas, pedir o crédito das despesas financeiras. “A decisão obtida é excelente, mas concede o crédito em uma fundamentação diversa do que estamos tentando”.

Para Santiago, não há relação entre o direito ao crédito por despesas financeiras e a incidência do PIS e da Cofins sobre as receitas financeiras. “As despesas financeiras são empregadas na atividade produtiva, e não na geração de receitas financeiras. Nenhuma empresa não financeira toma dinheiro emprestado para aplicar”, afirma.

Segundo o tributarista o direito ao crédito advém da cobrança de PIS e Cofins das receitas financeiras aos bancos, pendente de julgamento no Supremo Tribunal Federal (STF), em sede de repercussão geral. “Se a Receita cobra esses créditos das instituições financeiras como pode negar os créditos ao adquirente?”, questiona Santiago. Nos processos que propôs na Justiça, ainda não há decisão.

Fonte: Jornal contábil
Data: 11 de Julho de 2016
Acesso: 15 de Julho de 2016

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