Fisco esclarece devolução de PIS/Cofins-Importação

Fisco esclarece devolução de PIS/Cofins-Importação

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A Receita Federal confirmou o direito dos contribuintes à devolução de valores de PIS/Cofins-Importação, com a exclusão do ICMS do cálculo das contribuições – como definiu o Supremo Tribunal Federal (STF) em um julgamento realizado quatro anos atrás. Porém, afirma em solução de consulta que a restituição não será feita de forma automática.

Isso porque o Fisco poderá não concordar com o valor apurado ou com pedido de compensação (dos créditos gerados por débitos) que forem feitos. No texto, a Receita informa que esse reconhecimento ficará condicionado à análise do caso concreto “com todas as suas especificidades”.

“É o mesmo que dizer ao contribuinte que o crédito que ele apurou fiscalmente, a partir dos seus registros, não será necessariamente reconhecido”, diz a tributarista Gabriela Jajah, do escritório Siqueira Castro.

Para evitar problemas, destaca a advogada, as empresas devem ter o cuidado de guardar a documentação fiscal não somente por um período de cinco anos, mas até o momento em que a Receita concordar integralmente com os créditos informados. Isso porque pode levar muito tempo entre o processamento do pedido de compensação e o reconhecimento – especialmente se envolver discussão judicial.

“O contribuinte vai usar créditos passados para compensar débitos correntes. Então, se lá na frente a Receita entender que esse crédito não é 100% bom, o contribuinte que não tiver os documentos para provar a sua apuração poderá sair da posição de credor para a de devedor”, acrescenta Jajah.

A solução de consulta que trata do assunto é a de número 237, publicada no Diário Oficial da União do dia 24. Na prática, para advogados, as informações divulgadas servem como complemento ao Parecer Normativo nº 1 da Subsecretaria de Tributação e Contencioso da Coordenação-Geral de Tributação (Cosit). O texto foi editado em março deste ano e estabeleceu as regras para a restituição.

A Receita definiu, por meio do parecer, que bastaria o contribuinte fazer o pedido da restituição informando o valor pago indevidamente. O montante será checado com base nos cruzamentos de dados do Siscomex (Sistema Integrado de Comércio Exterior). Já os que têm ação judicial em andamento terão de esperar a tramitação se encerrar.

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Nem o parecer nem a solução de consulta poderão ser aplicados, no entanto, em relação à decisão sobre a base de cálculo do PIS e da Cofins. Em março deste ano, o STF decidiu que o ICMS também não entra no cálculo das contribuições. Não foi definida, contudo, a tese de repercussão geral nem analisado o pedido da Fazenda Nacional de modulação dos efeitos.

“São discussões diferentes. Um dos argumentos que levaram à decisão do Supremo sobre a inconstitucionalidade da inclusão do ICMS no cálculo do PIS e da Cofins Importação é que a base deveria ser o valor aduaneiro e o imposto estadual, em regra, não integra esse valor”, chama a atenção o tributarista Sandro Machado dos Reis, do escritório Bichara Advogados.

Já a tese sobre a exclusão do ICMS do cálculo das contribuições, que foi julgada pelo STF neste ano, trata sobre o conceito de receita bruta (que é a base para o PIS e a Cofins neste caso).

Além da Solução de Consulta nº 237, a Receita publicou no mesmo dia uma outra, de nº 241, também sobre PIS e Cofins. O texto trata sobre a impossibilidade da tomada de crédito com gastos referentes a serviços aduaneiros e fretes internos de mercadorias importadas do ponto da fronteira (porto ou aeroporto alfandegário) até a empresa.

Já em relação aos dispêndios com armazenagem de mercadoria nacional ou importada admite-se o desconto, mas os produtos, nesse caso, teriam de ser encaminhados diretamente do armazém para o adquirente.

O advogado Marcelo Bolognese, do escritório que leva o seu nome, diz que essa solução conflita com uma outra que havia sido publicada três meses antes (a de nº 121). O texto anterior, segundo ele, não impunha limites à armazenagem das mercadorias. “Agora, o texto [da 241] dá a entender que não será possível tomar crédito se o destinatário não for a própria loja. Mas é importante que se diga que a lei não impõe essa limitação.”

Por Joice Bacelo | De São Paulo

Fonte: Valor Econômico
Data: 29 de maio de 2017
Acesso: 02 de junho de 2017

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