STJ permite ICMS no cálculo do PIS e Cofins

STJ permite ICMS no cálculo do PIS e Cofins

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Uma das discussões mais importantes do direito tributário ganhou um novo capítulo na tarde de ontem no Superior Tribunal de Justiça (STJ). A 1ª Seção da Corte permitiu a inclusão do ICMS na base de cálculo do PIS e da Cofins ao julgar um recurso repetitivo, que servirá de orientação para as instâncias inferiores.

A questão é relevante para a União e também para as empresas. Na prática, a retirada do imposto desse cálculo significaria pagar um valor menor de contribuições. O impacto econômico para a União caso se entendesse necessário devolver os valores dos últimos dez anos seria de R$ 250 bilhões, segundo consta no relatório “Riscos Fiscais”, da Lei de Diretrizes Orçamentárias (LDO) de 2016. A perda anual na arrecadação seria de R$ 27 bilhões, segundo a Procuradoria­ Geral da Fazenda Nacional (PGFN).

Com a decisão, o STJ retomou entendimento que havia consolidado e que foi alterado após julgamento do Supremo Tribunal Federal (STF) em 2014. Apesar de a Corte ter limitado seu julgamento ao caso concreto ­ pois ainda analisará o assunto em repercussão geral e ação declaratória de constitucionalidade (ADC), sob nova composição ­, o posicionamento deu início a divergências no STJ. Agora, o julgamento do repetitivo fixa, definitivamente, o entendimento do tribunal.

O recurso julgado foi apresentado por uma empresa de sistemas automotivos do Paraná, a Hubner Componentes Automotivos. A maioria dos ministros acompanhou o voto-­vista do ministro Mauro Campbell Marques. O ministro defendeu que é legítima a incidência de tributo sobre tributo salvo determinação constitucional ou legal expressa em sentido contrário ­ inexistente nesse caso.

Ainda segundo o voto, o valor do ICMS destacado na nota, devido e recolhido, compõe o faturamento da empresa, submetendo-­se à tributação pelas contribuições sociais. O tributo estadual, acrescentou, também é integrante do conceito maior de receita bruta, base de cálculo do PIS e da Cofins.

No julgamento, ficaram vencidos o relator, ministro Napoleão Nunes Maia Filho, e a ministra Regina Helena Costa. A ministra defendeu que o ICMS não pode integrar a base de cálculo do PIS e da Cofins por se tratar de receita estadual. Portanto, não poderia compor o conceito de faturamento para qualquer contribuição.

O relator também entende que os valores do imposto seriam predestinados ao Fisco estadual, de forma que não pertencem ao contribuinte e não integram sua receita. Tratar ingresso como receita sobreporia ao contribuinte um encargo indevido, segundo Napoleão.

No julgamento, havia outro pedido além do referente ao ICMS. A Fazenda Nacional recorreu da possibilidade de retirada de valores transferidos a terceiros durante a vigência de dispositivo da Lei nº 9.718. O assunto era bem menos polêmico e teve decisão unânime favorável ao pedido.

A advogada da empresa, Anete Mair Maciel Medeiros, do escritório Gaia, Silva, Gaede e Associados, afirmou que vai aguardar a publicação do acórdão para decidir se irá recorrer. Anete acredita, no entanto, que poderá levar a discussão ao Supremo, onde o processo ficará sobrestado (suspenso) aguardando a decisão da repercussão geral e da ADC. O escritório, porém, poderia atuar como parte interessada nesses processos.

Apesar de o STF ter destacado no julgamento realizado em 2014 que se tratava de caso isolado, diversos tributaristas apontaram que o STJ ignorou o precedente ao tratar do assunto no repetitivo. “O STJ ignorou que o Supremo já decidiu a matéria”, disse a advogada Mariana Zechin Rosauro, do escritório Andrade Advogados Associados, que é parte interessada nas ações que aguardam julgamento no STF. Mariana acredita que o tema poderá voltar a julgamento no STF ainda neste semestre.

“A decisão mostra que a jurisprudência precisa ser pacificada pelo Supremo”, afirmou a advogada Valdirene Lopes Franhani, do escritório Braga & Moreno Consultores e Advogados. Valdirene ponderou que apesar do STJ ter mantido sua posição histórica, a matéria é constitucional.

Fonte: Valor Econômico
Data: 11 de agosto de 2016
Acesso: 12 de agosto de 2016

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