Debate sobre insumo para PIS-Cofins parece um longa-metragem sem fim

Debate sobre insumo para PIS-Cofins parece um longa-metragem sem fim

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Sabe aquele longa-metragem chato e que não tem fim? É bem parecido com a “briga” entre contribuintes e Receita Federal no que tange ao conceito de insumo para fins de creditamento do PIS e da Cofins, no regime da não cumulatividade. A insegurança jurídica criada por esse litígio criou passivos gigantes para as empresas.

O final feliz começou a ser desenhado dias atrás em favor dos contribuintes, depois de muita luta, quando a 1ª Seção do STJ julgou pela sistemática dos recursos repetitivos o Recurso Especial 1.221.170 interposto pela Anhambi Alimentos.

O contribuinte alegava, em apertada síntese, que haveria ilegalidade nas normas editadas pelo Fisco federal, por violação ao conceito de insumo das leis 10.637/2002 e 10.833/2003.

No caso, por maioria de votos, os ministros entenderam que o conceito mais restrito, trazido pelas instruções normativas 247/2002 e 4.040/2004, não estava em consonância com o conceito disposto pelo artigo 3º, inciso II, das leis 10.637/02 e 10.833/03.

O entendimento esposado pelo STJ é que o insumo é aquele bem ou serviço, essencial e relevante, empregado de forma direta ou indireta à atividade do contribuinte. Venceram os contribuintes, mas o que pode ser considerado essencial ou relevante para tal atividade? Cada qual terá uma análise sobre o que é essencial e relevante para a sua atividade, e o Fisco terá uma visão totalmente diferente desses dois conceitos.

A pessoa mais indicada para dizer o que é essencial ou relevante para sua atividade é o próprio contribuinte. Será difícil alguém externo dizer que determinado insumo é essencial ou relevante, se mal conhece aquela atividade — como os fiscais. Daí surgirão novos litígios. E o longa-metragem chato continuará. É basicamente isso que ocorrerá na prática.

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Para exemplificar, no caso de empresas mineradoras, os gastos despendidos com serviços de terraplanagem, sondagem, combustíveis, levantamento topográfico e bombeamento são gastos relevantíssimos e essenciais para as atividades desses contribuintes.

Dada essa informação, poderia algum fiscal da Receita Federal, em sã consciência, glosar créditos tomados desses bens e serviços empregados na atividade minerária? Infelizmente a resposta é positiva, e isso já ocorreu, tendo a Câmara Superior de Recursos Fiscais do Carf, no Acórdão 9303-006.1001, que é anterior ao leading case agora formado, proferido decisão no sentido de que tais bens e serviços são essenciais à atividade mineradora. Assim, resta claro que discussões sobre o que é essencial e relevante para a atividade do contribuinte ainda continuarão, no âmbito administrativo.

A decisão do STJ aponta para uma situação mais vantajosa aos contribuintes na tomada de créditos de insumos, bens ou serviços, empregados diretamente ou indiretamente, na atividade empresarial. Colocou fim às formulas ilegais e restritivas implementadas pelo Fisco federal. Mas a litigiosidade, infelizmente, não acabará, deslocando o debate para a demonstração de que os insumos creditados são essenciais e relevantes para suas operações.

O longa-metragem contribuintes versus Fisco federal não acabou. Pensando bem, parece mesmo mais uma dessas séries de TV, com diversas temporadas. Esta acabou com um final feliz para os contribuintes, porém, como será a próxima temporada?


1 Trecho da Ementa do Acórdão 9303-006.100:
“(…) PIS/PASEP E COFINS. REGIME DA NÃO-CUMULATIVIDADE. CONCEITO DE INSUMOS.
O conceito de insumos para efeitos do art. 3º, inciso II, da Lei nº 10.637/2002 e do art. 3º, inciso II da Lei 10.833/2003, deve ser interpretado com critério próprio: o da essencialidade. Referido critério traduz uma posição “intermediária”, na qual, para definir insumos, busca-se a relação existente entre o bem ou serviço, utilizado como insumo e a atividade realizada pelo Contribuinte. Não é diferente a posição predominante no Superior Tribunal de Justiça, o qual reconhece, para a definição do conceito de insumo, critério amplo/próprio em função da receita, a partir da análise da pertinência, relevância e essencialidade ao processo produtivo ou à prestação do serviço. ATIVIDADE DE MINERAÇÃO. INSUMOS. SERVIÇOS UTILIZADOS NA LAVRA DO MINÉRIO. Pela peculiaridade da atividade econômica que exerce, são imprescindíveis à lavra do caulim os serviços relativos à terraplanagem, sondagem, levantamento topográfico e serviço de bombeamento de PIG no mineroduto, devendo, portanto, ser reconhecidos como insumos e concedido o direito ao crédito à Contribuinte” (grifo nosso).

Fonte: Conjur
Data: 02 de março de 2018
Acesso: 02 de março de 2018

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