STJ julga se ICMS deve integrar base de cálculo da CPRB

STJ julga se ICMS deve integrar base de cálculo da CPRB

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1ª Turma analisa se deve adotar precedente do STF que excluiu o ICMS da base do PIS/Cofins ao caso

Como esperado, após a decisão do Supremo Tribunal Federal (STF) que excluiu o ICMS da base de cálculo do PIS e da Cofins outros tribunais começaram a discutir a aplicação do entendimento a outros tributos.

Desta vez, a 1ª Turma do Superior Tribunal de Justiça (STJ) começou a discutir, nesta quinta-feira (21/9), se o ICMS deve integrar base de cálculo da Contribuição Previdenciária sobre Receita Bruta (CPRB).

A contribuição foi criada pela Lei 12.546 de 2011. Trata-se de uma contribuição previdenciária que seria 20% da folha de salário e foi criada pelo governo no final de 2011 para incentivar a economia, como parte do Plano Brasil Maior. A regra vigorou desde o final de 2011 até o final de 2016.

Por enquanto apenas o relator, ministro Napoleão Nunes Maia Filho, votou no caso. O julgamento do caso foi interrompido por pedido de vista antecipada da presidente da turma, ministra Regina Helena Costa.

Segundo Maia Filho, o precedente do STF deve sim ser aplicado no caso da CPRB, já que na sessão do STF a decisão foi de que o precedente se aplica a todas as hipóteses semelhantes.

“A lógica adotada naquele julgamento do STF se aplica a tudo e por tudo na solução do caso em exame, porque aqui também se trata de matéria jurídica idêntica, redutível àquela mesma constatação de sua não integração ao patrimônio do contribuinte”, afirmou o ministro.

Maia Filho ressaltou ainda que o ICMS foi excluído da base de cálculo do PIS e da Cofins por não ser receita, e por esse mesmo motivo é que deve sair da base de cálculo da CPRB.

Sobre a possibilidade de aplicar o entendimento ao caso da CPRB, sem aguardar a publicação do acórdão da decisão do Supremo,  o ministro afirmou que não há insegurança jurídica, uma vez que: “a segurança jurídica está em observar a decisão do Supremo”.

Maia Filho chegou a citar ainda a perda de arrecadação por parte do governo ao excluir o ICMS da base da CPRB, que chamou de “brutal arrecadação”, no entanto afirmou que esse fato não argumento jurídica para não se aplicar o precedente do STF no caso.

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A procuradoria da Fazenda Nacional ainda não sabe qual seria a perda de arrecadação caso o STJ decida pela exclusão do tributo.

Discussão

Apesar de o julgamento no STF ter ocorrido em 15 de março deste ano, até agora não houve a publicação do acórdão, o que impede que a Fazenda Nacional apresente embargos de declaração pedindo a modulação dos efeitos da decisão. Sem a definição se haverá ou não a modulação,  o impacto do entendimento da Corte não pode ser dimensionado.

No julgamento, a maioria dos ministros do Supremo concordou que o valor do ICMS não configura receita própria da empresa, não podendo, portanto, compor o cálculo das contribuições sociais.

Na sessão de hoje do STJ, o contribuinte pediu para que fosse aplicado o precedente do STF (RE 574.706) por analogia no caso da CPRB, já que, para ele, as teses são idênticas.

Do outro lado, a Fazenda Nacional diz que o precedente não pode ser aplicado por dois motivos: segurança jurídica e distinção entre os tributos.

Segundo o procurador Clóvis Ferreira da Silva Neto, da Procuradoria-Geral da Fazenda Nacional (PGFN) o fato de o acórdão do STF ainda não ter sido publicado impossibilita a interpretação da decisão. “Não há como saber todos os fundamentos da decisão. Não há como ter segurança em aplicar o precedente sem saber a decisão. O julgamento do STF foi polêmico e de repercussão bilionária ao erário”, afirmou.

Além disso, o procurador afirmou que se a decisão do Supremo for aplicada a todos os tributos vai gerar uma revisão completa do regime tributário. Ele ainda ressaltou ser possível a superação do precedente em embargos declaratórios e a modulação dos efeitos da decisão. Ele pediu, por fim, o sobrestamento do recurso para aguardar a publicação do acórdão.

Por: Livia Scocuglia – Brasília

Fonte: Jota
Data: 21 de setembro de 2017
Acesso: 29 de setembro de 2017

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