STJ volta a julgar conceito de insumo para crédito de Cofins

STJ volta a julgar conceito de insumo para crédito de Cofins

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A 1ª Seção do Superior Tribunal de Justiça (STJ) retomou nesta semana o julgamento que determinará o que pode ser considerado insumo para a obtenção de créditos de PIS e Cofins. Por ora, o placar é favorável aos contribuintes, que contabilizam quatro votos contra a interpretação restritiva adotada pela Receita Federal e um a favor. O assunto é julgado por meio de recurso repetitivo.

Como o uso de créditos pode reduzir o valor das contribuições, o tema é de grande relevância para as empresas e para a União. Em termos financeiros, o processo é um dos maiores em tramitação no STJ. Pode ter impacto de cerca de R$ 50 bilhões, segundo o ministro Herman Benjamin. O valor foi divulgado pela Procuradoria-Geral da Fazenda Nacional (PGFN) em 2015 e representaria a queda de arrecadação naquele ano com uma eventual derrota da União.

Os ministros analisam as instruções normativas da Receita Federal nº 247, de 2002, e nº 404, de 2004. As normas consideram como insumos, na fabricação ou produção de bens destinados à venda, as matérias-primas, materiais de embalagens e produtos intermediários e outros bens que sofram alterações no processo, mas não estejam incluídos no ativo imobilizado. E para a prestação de serviço, são somente os bens aplicados ou consumidos na atividade.

O caso julgado é o da Anhambi Alimentos, fabricante de ração animal, que pede créditos sobre diversos insumos – como água, combustíveis, seguros sobre perdas em sua produção e frete. O julgamento foi iniciado em 2015 e, com um novo pedido de vista, foi suspenso pela terceira vez.

Na quarta-feira, a ministra Regina Helena Costa levou seu voto e reforçou o entendimento que prevalece no julgamento. Para ela, os critérios para se identificar insumos seriam a essencialidade e a relevância, e não os estabelecidos nas instruções normativas.

Seu voto foi praticamente na mesma linha do proferido pelo ministro Mauro Campbell, que tinha estabelecido como critério a essencialidade e a pertinência. Após o voto da ministra Regina, Campbell reconsiderou o seu voto para alterar os critérios e seguir os estabelecidos por ela.

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O relator, ministro Napoleão Nunes Maia Filho, que tinha dado um voto mais abrangente, de que o conceito de insumo teria que adotar a mesma linha utilizada para o Imposto de Renda, também acompanhou o voto da ministra Regina.

Apesar de haver dúvidas, os contribuintes também contam como voto favorável o proferido pelo ministro Benedito Gonçalves. Em seu voto, afirmou que o conceito de insumo para fins de creditamento do PIS e da Cofins está relacionado aos elementos essenciais à atividade-fim da empresa, contudo votou pela improcedência do recurso.

Apenas o ministro Og Fernandes defendeu a interpretação da Receita Federal sobre insumos. Para ele, o legislador levou em consideração os mesmo critérios adotados para o aproveitamento de créditos do IPI no regime da não cumulatividade.

A seção é composta por dez ministros, mas dois deles – Gurgel de Faria e Francisco Falcão – podem optar por não votar. Eles não estavam acompanhando o julgamento desde o início. Sem eles, faltaria apenas os votos dos ministros Assussete Magalhães e Sérgio Kukina. O presidente, Herman Benjamin, só vota em caso de empate.

De acordo com o advogado da empresa, Flávio Carvalho, do escritório Schneider, Pugliese Advogados, a tendência, até agora, é de que os ministros da 1ª Seção considerem inválidas as instruções normativas da Receita Federal, seguindo entendimento da Câmara Superior do Conselho Administrativo de Recursos Fiscais (Carf). Até então, há decisões divergentes sobre o tema no STJ.

Fonte: Valor Econômico
Data: 11 de novembro de 2016
Acesso: 11 de novembro de 2016

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