Voto de decano pode definir disputa sobre ICMS no cálculo do PIS/Cofins

Voto de decano pode definir disputa sobre ICMS no cálculo do PIS/Cofins

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Os contribuintes torcem pela manutenção do entendimento do ministro Celso de Mello para vencer no Supremo Tribunal Federal (STF) a disputa bilionária sobre a inclusão do ICMS na base de cálculo do PIS e da Cofins. Iniciado ontem, o julgamento da repercussão geral foi suspenso com um placar de cinco a três para as empresas. Faltam votar Gilmar Mendes e o decano que, em outro recurso, havia acatado a argumentação dos contribuintes.

O julgamento deverá ser retomado na próxima quarta-feira. A tese em questão tem mais de 20 anos e um precedente favorável às empresas do próprio Supremo. Porém, quando julgado, em 2014, foi estabelecido que valeria apenas para o caso concreto, da empresa Auto Americano Distribuidor de Peças.

Da composição atual do Supremo, somente Cármen Lúcia, Celso de Mello, Marco Aurélio Mello, Ricardo Lewandowski e Gilmar Mendes votaram naquele julgamento. Dos cinco, apenas o ministro Gilmar Mendes foi favorável à Fazenda Nacional.

Agora a mesma tese está sendo julgada com repercussão geral em processo que envolve a Imcopa Importação, Exportação e Indústria de Óleos. A decisão servirá de orientação para as instâncias inferiores da Justiça. Há mais de dez mil processos suspensos aguardando o julgamento.

Um entendimento favorável aos contribuintes pode reduzir a arrecadação federal em R$ 20 bilhões por ano, segundo a Procuradoria-Geral da Fazenda Nacional (PGFN). O impacto pode chegar a R$ 100 bilhões se considerada a possibilidade de devolução do que foi recolhido nos últimos cinco anos.

Na sessão de ontem, quatro ministros acompanharam o voto da relatora, ministra Cármen Lúcia. A magistrada manteve seu posicionamento no precedente e afirmou que o valor do ICMS não constitui receita do contribuinte – tem como destino fiscal ser transferido à Fazenda Pública.

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Assim, para a relatora, o valor correspondente ao ICMS não pode ser incluído na base de cálculo do PIS e da Cofins. O entendimento foi acompanhado pelos ministros Rosa Weber, Luiz Fux, Ricardo Lewandowski e Marco Aurélio Mello, que preferiu adiantar seu voto.

Já os ministros Edson Fachin, Luís Roberto Barroso e Dias Toffoli votaram pela inclusão do imposto estadual na base do PIS e da Cofins, negando o pedido da Imcopa na ação. Para Fachin, o conceito de faturamento se traduz na somatória de receitas resultantes das atividades empresariais e não apenas da venda de bens e serviços.

Por isso, segundo o ministro, o valor de ICMS devido e recolhido deve ser enquadrado como receita da empresa contribuinte. Embora não haja incremento patrimonial, acrescentou, o valor de ICMS referente a uma operação concreta integrará a receita efetiva do contribuinte.

Em seu voto, o ministro Luís Roberto Barroso disse que a existência de uma grave crise fiscal no país não lhe é indiferente, mas também não influencia na sua decisão. Segundo o magistrado, a verba transferida pelo consumidor ao estabelecimento do contribuinte não é “carimbada” a título de ICMS.

Barroso afirmou ainda que a empresa pode dar diversos destinos ao dinheiro, além de quitar o valor de ICMS embutido na mercadoria, como investir no mercado financeiro ou mesmo descumprir a obrigação tributária e ficar com dinheiro. Em sua exposição, o ministro voltou a destacar que não seria má ideia repensar o sistema tributário brasileiro.

Por causa do impacto nas contas públicas, a PGFN solicitou uma modulação inédita na Corte: que a decisão seja válida somente a partir de janeiro de 2018. O prazo seria necessário para a criação de uma lei para recompor a perda de arrecadação com o julgamento. Fabrício Da Soller, procurador-geral da Fazenda Nacional, explicou que a meta de resultado primário de 2017 é de déficit de R$ 139 bilhões e o impacto econômico desse julgamento não está previsto.

Fonte: Valor Econômico
Data: 10 de março de 2017
Acesso: 10 de março de 2017

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