STJ mantém tributação de receitas financeiras

STJ mantém tributação de receitas financeiras

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1ª Turma considerou legal o decreto 8.426/15, que aumentou as alíquotas de PIS e Cofins

Após vários pedidos de vista, os ministros da 1ª Turma do Superior Tribunal de Justiça (STJ) finalizaram o julgamento do recurso especial que discutia se o Executivo poderia ter restabelecido, por decreto, a cobrança de PIS e Cofins sobre receitas financeiras das empresas.

Por três votos a dois a turma declarou a legalidade da incidência do PIS/Cofins sobre o faturamento das empresas, bem como reconheceu a legalidade do Decreto 8.426, que majorou as alíquotas das contribuições.

Em 2015 o governo elevou de zero para 4,65% a alíquota das contribuições sociais sobre receitas financeiras, inclusive decorrentes de operações realizadas para fins de hedge. A edição do Decreto 8.426 gerou uma onda de questionamentos no Judiciário. O STJ analisou a questão pela primeira vez.

Iniciado em agosto, o julgamento foi retomado nesta terça-feira (19/9), com o voto do ministro Benedito Gonçalves, que havia pedido vista do processo em abril. Para ele, inexiste crise de legalidade no estabelecimento da alíquota por decreto.

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No final, os ministros Gurgel de Faria, Benedito Gonçalves e Sérgio Kukina negaram provimento ao recurso da Companhia Zaffari Comércio e Indústria. Eles se posicionaram pela legalidade do decreto.

Ao abrir a divergência em sessão anterior, o ministro Gurgel de Faria afirmou que aumento das alíquotas por decreto é legal, já que a norma apenas trabalhou dentro do que a Lei 10.865/2004 permitiu.

“Se tivesse ultrapassado isso, aí sim teríamos uma ilegalidade, mas não foi o que ocorreu”, afirmou. “Pessoalmente, entendo que o legislador não utilizou da melhor técnica, pois a alteração de alíquotas por meio de decreto deveria ficar restrita às hipóteses previstas na Constituição. Mas uma vez considerada constitucional a lei, permite-se ao poder Executivo tanto reduzir como restabelecer as alíquotas de PIS Cofins sobre as receitas financeiras das pessoas jurídicas”, concluiu o ministro.

Já o relator do caso, ministro Napoleão Nunes Maia Filho, e a ministra Regina Helena Costa se posicionaram a favor dos contribuintes, ao entenderem pela não incidência do PIS e da Cofins sobre as receitas financeiras.

Os dois ministros concordaram pela ilegalidade de se restabelecer alíquota por decreto. Para Nunes Maia, a retomada da tributação ofenderia a regra da legalidade tributária.

Fonte: JOTA
Data: 19 de setembro de 2017
Acesso: 22 de setembro de 2017

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