STJ define ilegalidade de restrições aos créditos do PIS e COFINS

STJ define ilegalidade de restrições aos créditos do PIS e COFINS

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Em julgamento de recurso especial, a Primeira Seção do Superior Tribunal de Justiça (STJ) definiu que, para fins de creditamento de PIS e COFINS, deve ser considerado insumo tudo aquilo que seja imprescindível para o desenvolvimento da atividade econômica.

A decisão declarou a ilegalidade das Instruções Normativas 247/2002 e 404/2004 da Receita Federal, por considerar que os limites interpretativos previstos nos dois dispositivos restringiram indevidamente o conceito de insumo.

Segundo o acórdão, “a aferição da essencialidade ou da relevância daqueles elementos na cadeia produtiva impõe análise casuística, porquanto sensivelmente dependente de instrução probatória”. Dessa forma, caberá às instâncias de origem avaliar se o produto ou o serviço constitui elemento estrutural e inseparável do processo produtivo ou da execução do serviço.

Teses

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O julgamento do tema, cadastrado sob o número 779 no sistema dos repetitivos, fixou as seguintes teses:

“É ilegal a disciplina de creditamento prevista nas Instruções Normativas da SRF 247/2002 e 404/2004, porquanto compromete a eficácia do sistema de não cumulatividade da contribuição ao PIS e à COFINS, tal como definido nas Leis 10.637/2002 e 10.833/2003.”

“O conceito de insumo deve ser aferido à luz dos critérios de essencialidade ou relevância, ou seja, considerando-se a imprescindibilidade ou a importância de determinado item – bem ou serviço – para o desenvolvimento da atividade econômica desempenhada pelo contribuinte.”

Fonte: Guia Tributário
Data: 11 de maio de 2018
Acesso: 11 de maio de 2018

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