A demora do Supremo Tribunal Federal (STF) para finalizar o julgamento que excluiu o ICMS da base de cálculo do PIS e da Cofins pode levar empresas a serem penalizadas por causa dos dados enviados à Receita Federal por meio da Escrituração Fiscal Digital (EFD). O órgão multará os contribuintes com decisão judicial — sem especificar o cálculo — que informarem no documento a exclusão do ICMS registrado em notas fiscais.
“Se não houver decisão judicial determinando especificamente a base de cálculo da exclusão, será adotada a interpretação dada pela Solução de Consulta nº 13”, diz a Receita Federal por meio de nota enviada ao Valor.
A solução de consulta foi editada em outubro pela Coordenação-Geral de Tributação (Cosit) da Receita. Por meio do texto, o órgão orienta os fiscais no sentido de que só deve ser excluído dessa conta o ICMS efetivamente recolhido — montante menor do que o registrado nas notas fiscais.
O envio mensal da EFD-Contribuições é obrigatório para todas as empresas que pagam PIS e Cofins. O prazo para encaminhar a primeira escrituração do ano venceu este mês.
No dia 15, ao publicar a Instrução Normativa nº 1.876, a Receita detalhou as penalidades aplicáveis. A norma estabelece que a apresentação da EFD-Contribuições com incorreções ou omissões acarretará aplicação das multas, “sem prejuízo das sanções administrativas, cíveis e criminais cabíveis”.
A IN também adapta a regulamentação da Receita à Lei nº 13.670, de 2018. A lei estipula multa de 0,5% da receita bruta aos que não atenderem aos requisitos para a apresentação dos registros e arquivos da EFD; multa de 5% do valor da operação até 1% da receita bruta a quem omitir ou prestar informações incorretas; e de 75% se a obrigação for cumprida em prazo fixado em intimação.
“A multa dependerá da situação específica do contribuinte, mas a regra geral é de aplicação de um percentual de 75% no lançamento de ofício [autuação]”, afirma a Receita Federal por nota.
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Para o advogado Humberto Marini, sócio da área tributária do CMA, a Fazenda cria um ambiente de maior insegurança jurídica com a exigência na EFD-Contribuições. “A Solução de Consulta 13 desvirtua o posicionamento do Supremo”, diz.
Marini afirma que a maioria das empresas obteve decisão judicial genérica, declarando apenas que deve excluir o ICMS do PIS/Cofins. “Algumas optaram por esperar uma eventual penalidade decorrente da EFD-Contribuições e, se ocorrer, entrar com ação na via administrativa primeiro”, diz.
A questão ainda está em aberto no STF. Os ministros ainda precisam julgar o recurso (embargos de declaração) da Procuradoria-Geral da Fazenda Nacional (PGFN) contra a decisão proferida há dois anos. A razão da demora pode ser o possível reflexo financeiro da decisão, de até R$ 250 bilhões de acordo com estimativa da Fazenda.
“A Fazenda usou manobras jurídicas para postergar o julgamento da tese por mais de dez anos e, agora, argumenta impacto no orçamento da União. Trata-se de uma inconstitucionalidade conveniente”, afirma Marini.
Na Athros Auditoria e Consultoria, somente nos casos em que a empresa possui decisão determinando expressamente a exclusão do ICMS da nota fiscal já preenche-se a EFD-Contribuições com esta informação. “Este ano, o layout da EFD mudou e existe espaço para ajuste e dizer a que ele se refere. Ali pode-se explicar que se exclui o ICMS destacado nas notas fiscais com base em processo judicial transitado em julgado”, afirma o consultor Douglas Campanini.
Quem conseguiu decisão judicial genérica, até pode se arriscar, segundo Campanini. “É possível justificar o ajuste com o número do processo judicial, sem detalhar o cálculo. Mas se os embargos forem julgados pelo STF em sentido desfavorável ao contribuinte, haverá o risco da multa de 75%”, diz.
Fonte: Valor Econômico
Data: 28 de março de 2019
Acesso: 05 de abril de 2019
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