Empresas obtêm liminar que exclui ICMS da base do Pis/Cofins

Empresas obtêm liminar que exclui ICMS da base do Pis/Cofins

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O STF considerou essa estrutura de tributação inconstitucional. É possível reaver valores pagos a mais nos últimos cinco anos

A decisão do Supremo Tribunal Federal (STF) de excluir o ICMS da base de cálculo do Pis/Cofins tem levado empresas a questionar na Justiça situações semelhantes envolvendo outros tributos, como é o caso da incidência do ISS sobre as contribuições.

Para casos envolvendo o imposto estadual, os contribuintes estão conseguindo obter liminares que garantem a suspensão do pagamento e a correção do cálculo.

É importante destacar que, embora o STF tenha julgado irregular a incidência do ICMS na base do Pis/Cofins, a legislação que criou essa estrutura de tributação ainda não foi revisada. Assim, é necessário pedir a suspensão da cobrança na Justiça.

Cálculos do tributarista Nelson Lacerda, da Lacerda & Lacerda advogados, mostram que as empresas podem economizar valor equivalente a 3% do faturamento mensal caso consigam a suspensão da cobrança irregular.

A ilegalidade, de acordo com a decisão do STF, está no fato de o imposto estadual compor a receita bruta da empresa, ou seja, faz parte da totalidade das receitas auferidas no exercício da atividade e, assim, não poderia entrar base de cálculo do Pis/Cofins.

O mesmo raciocínio valeria para a incidência do ISS no Pis/Cofins, ou do ICMS na base da CPRB (Contribuição Previdenciária sobre Receita Bruta), casos que também encontram posicionamentos favoráveis aos contribuintes por parte dos ministros do STF.

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Segundo Lacerda, além da suspensão da cobrança, os contribuintes também podem solicitar a restituição dos valores pagos indevidamente nos últimos cinco anos. Para isso, é preciso ter em mãos um laudo pericial comprovando todos os pagamentos.

A Receita Federal estima que deixaria de arrecadar aproximadamente R$ 200 bilhões ao longo dos últimos cinco anos caso o ICMS não incidisse na base de cálculo do Pis/Cofins.

Complexidade

A multi-incidência é uma das peculiaridades do sistema tributário brasileiro. Segundo Lacerda, no caso do ICMS, além de onerar outros tributos, o imposto estadual incide sobre ele próprio.

“Essa complexidade tem afastado empresas estrangeiras de investirem no Brasil, justamente em um momento no qual precisamos gerar empregos”, diz o tributarista, habituado a intermediar a entrada de empresas chinesas no país.

Ele diz que essa complexidade leva a outros problemas, caso da judicialização excessiva. “Como no país não se respeita a hierarquia das leis, tudo acaba no STF”, afirma. “Não se pode cobrar multa maior do que valor da obrigação principal, essa é uma determinação prevista por lei federal. Mas a Receita cobra multas que chegam a superar 300% da obrigação principal.”

Situações como esta, ou como a do ICMS incidindo na base de cálculo da Pis/Cofins, que surgem pela desobediência de leis maiores, acabam abarrotando a Justiça. “60% das ações que estão no Supremo atualmente tratam de inconstitucionalidades no pagamento de imposto”, diz Lacerda.

Fonte: Diário do Comércio
Data: 05 de junho de 2017
Acesso: 09 de junho de 2017

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