Exclusão do ICMS no Simples Nacional

Exclusão do ICMS no Simples Nacional

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Em 8 de outubro de 2014, o plenário do Supremo Tribunal Federal (STF), decidiu pela impossibilidade de o ICMS compor a base de cálculo da Cofins.

Em 15 de março de 2017, no RE 574.706, com repercussão geral, decidiu também pela impossibilidade de compor a base de cálculo da Contribuição para o PIS/Pasep.

Ambos os julgados, porém, tratam de legislação que não diz respeito aos optantes pelo Simples Nacional.

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Para estes, vale a definição da base de cálculo do art. 3º, § 1º, da Lei Complementar nº 123, de 2006, cuja constitucionalidade o STF não julgou nesses processos, estando portanto em pleno vigor.

E, a rigor, a situação dos optantes pelo Simples Nacional é totalmente distinta, uma vez que, por sua sistemática de cálculo, o percentual de ICMS incide não sobre a operação de circulação e antes da Cofins e da Contribuição para o PIS/Pasep, mas sobre a receita bruta e paralelamente a elas.

Sendo assim, o ICMS não compõe a base de cálculo do Simples Nacional, de sorte que esses julgados do STF são inaplicáveis aos optantes.

Fonte: Guia Tributário
Data: 16 de maio de 2017
Acesso: 19 de maio de 2017

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