Normas da Fazenda restringem uso de créditos de PIS e Cofins

Normas da Fazenda restringem uso de créditos de PIS e Cofins

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Por: Laura Ignaci

Para evitar que empresas usem créditos considerados indevidos de PIS e Cofins para recolher valores menores dessas contribuições, normas específicas vêm sendo editadas de forma progressiva pelo Ministério da Fazenda e Receita Federal nos últimos anos. Hoje há pelo menos 16 normas nesse sentido, dentre leis, instruções normativas e outras orientações do Fisco – quatro delas editadas este ano. As medidas interpretam as leis e criam mecanismos de controle.

O que se vê, segundo especialistas, é uma preocupação do Fisco de que as empresas estejam fazendo mais compensações, ainda que indevidas, motivadas pela crise econômica atual. Em agosto, R$ 7,153 bilhões em tributos foram pagos à Receita por meio desses créditos. No mesmo período do ano passado o valor foi de R$ 3,956 bilhões.

Conforme dados da Receita, os débitos compensados via créditos pelos contribuintes de agosto a outubro deste ano totalizam R$ 19,19 bilhões. Já as multas lançadas por compensações consideradas indevidas já ultrapassam os R$ 4,5 bilhões neste ano. Em 2015, as mesmas penalidades somaram R$ 3,3 bilhões. A multa corresponde a 50% do imposto que a empresa deixou de pagar.

Para tributaristas, se há casos de compensações indevidas realizadas de forma proposital para melhorar o caixa, na maioria das vezes o erro decorreria do cipoal de normas sobre o assunto. Segundo levantamento do escritório Nunes e Sawaya Advogados, há cinco leis que restringem o uso de créditos do PIS e da Cofins. Recentemente, a Receita publicou quatro atos declaratórios e seis soluções de divergência. Por meio desses instrumentos, restringiu-se ainda mais o uso de créditos pelas companhias.

Uma das orientações é a Solução de Divergência nº 7 da Coordenadoria-Geral de Tributação (Cosit) da Receita, pela qual interpreta as leis que criaram o PIS e a Cofins. Ao responder a dúvida de um contribuinte, o Fisco reforça o entendimento do órgão sobre quais insumos podem gerar créditos.

A solução estabelece que serviços ou produtos só são considerados insumos se diretamente ligados à atividade ou processo produtivo da empresa. A atividade principal do contribuinte que fez a consulta é a comercialização de produtos, mas também realiza atividade preparatória de florestamento e reflorestamento. “Apesar dos altos dispêndios para essa atividade secundária, isso não foi considerado insumo”, afirma a advogada Gabriela Jajah, do Siqueira Castro Advogados.

Segundo ela, quando há dificuldades de caixa, cresce o número de consultas de empresas interessadas em ampliar o uso de créditos. “Mesmo sabendo que a empresa será autuada pela Receita, existe a perspectiva de manutenção do crédito ao se recorrer na esfera administrativa ou no Judiciário”, diz.

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O aspecto positivo da solução de divergência, segundo o tributarista Luiz Rogério Sawaya, do Nunes e Sawaya Advogados, é a indicação de quais produtos, de acordo com a Receita, dão direito ao crédito. “Ao menos fica claro o que o Fisco vai negar para a empresa ir direto para o Judiciário, tentar obter uma medida preventiva”, afirma.

Há, porém, uma decisão favorável aos contribuintes no Conselho Administrativo de Recursos Fiscais (Carf). A Câmara Superior declarou que insumos devem ser tratados como despesa. “Todos ficaram surpresos com o posicionamento porque daria mais direito a crédito”, diz Sawaya. “Hoje, o que vigora no conselho é que o crédito depende de prova. É preciso comprovar que determinado insumo é imprescindível para a industrialização ou produção.”

A Procuradoria-Geral da Fazenda Nacional (PGFN) confirma o entendimento do conselho. Afirma que “no que diz respeito ao Carf, está consolidado na 3ª Turma da Câmara Superior de Recursos Fiscais que o insumo é caracterizado pela essencialidade à atividade do contribuinte, o que é verificado na análise de cada caso”.

Para Sawaya, se não for possível para a empresa comprovar a essencialidade de forma precisa, o ideal é partir para a Justiça, pois evita-se o risco de pagar a multa de 50% pela compensação indevida.

O tema também está na pauta do Superior Tribunal de Justiça. A 1ª Seção da Corte iniciou o julgamento da questão e até o momento o placar é positivo para os contribuintes – são quatro votos a favor e um contra.

Outra medida restritiva, a Portaria nº 392 do Ministério da Fazenda limita o pagamento de crédito presumido. Condiciona o benefício à apresentação da Certidão Negativa de Débitos ou da Positiva com Efeitos de Negativa emitida em até 60 dias, no máximo. Antes não havia esse prazo.

O crédito presumido foi autorizado pela Lei nº 12.865 em 2013. Vale para receitas de vendas para as indústrias de óleo de soja, ração, margarina, biodiesel, lecitina de soja e outros subprodutos de soja. “Porém, muitas vezes, a CND não estava regularizada na hora do pagamento”, afirma o advogado Flavio Sanches, do Veirano Advogados. Para ele, a exigência torna o pagamento de créditos tributários mais limitado, porém, mais seguro para as empresas.

Fonte: Valor Econômico 
Data: 02 de dezembro de 2016
Acesso: 02 de dezembro de 2016

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