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In this Tax Law newsletter you will read about:
- Superior Court rules tha non-recoverable IPI on purchased goods does not generate PIS/COFINS credits
- Supreme Court upholds decision on ICMS DIFAL and rejects motions for clarification (Theme 1.266)
- Supreme Court recognizes general repercussion on 13th salary paid during indemnified notice period
Superior Court rules tha non-recoverable IPI on purchased goods does not generate PIS/COFINS credits
The First Section of the Superior Court of Justice (STJ), ruling under the binding precedents procedure (Theme 1,373), held that non-recoverable IPI (Excise Tax) does not form part of the calculation basis for PIS and COFINS tax credits on the acquisition of goods for resale under the non-cumulative regime.
The Court held that, within the non-cumulative system, tax credits must strictly comply with statutory limits, and it is not permissible to treat non-recoverable IPI as an input or cost capable of generating credits. The Court also clarified that Brazilian Federal Revenue Ruling (IN RFB) No. 2,121/2022 did not create new rules, but merely consolidated an interpretation already consistent with existing legislation.
However, the Court modulated the effects of the decision, limiting its application to transactions carried out from December 20, 2022, the date on which IN RFB No. 2,121/2022 entered into force.
The following thesis was established: "Non-recoverable IPI does not form part of the calculation basis for PIS and COFINS credits under the non-cumulative regime on the acquisition of goods for resale, and this understanding applies to transactions carried out as of December 20, 2022."
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Supreme Court upholds decision on ICMS DIFAL and rejects motions for clarification (Theme 1.266)
The Brazilian Supreme Court (STF) rejected the motions for clarification filed by the State of Ceará in the judgment of Theme 1,266, which concerns the collection of the ICMS interstate rate differential (DIFAL) following the enactment of Complementary Law No. 190/2022.
In ruling on the motions for clarification, the opinion of the reporting Justice, Alexandre de Moraes, prevailed. He expressly stated that the modulation of effects applies to all taxpayers who filed a lawsuit by November 29, 2023, regardless of the existence of an individual court decision suspending the enforceability of the amounts in dispute or the making of a judicial deposit. This reinforces the broad scope of the exception established by the Brazilian Supreme Court.
As a result, the STF maintained the previously defined modulation of effects, namely:
(i) the collection of DIFAL is subject only to the 90-day non-retroactivity rule, becoming valid as of April 2022; and (ii) the tax is not enforceable in 2022 exclusively for taxpayers who filed lawsuits by November 29, 2023 and did not make payments during that period.
The official written decision has not yet been published.
Supreme Court recognizes general repercussion on 13th salary paid during indemnified notice period
Supreme Court (STF) has recognized general repercussion in the case concerning the levy of employer social security contributions on amounts paid as proportional 13th salary (Christmas bonus) related to an indemnified notice period (Theme 1,445 – Extraordinary Appeal No. 1,566,336).
In his opinion, the reporting Justice, Justice Edson Fachin, emphasized that although the STF has traditionally held that the classification of labor-related payments as remunerative or indemnity-based is a matter of ordinary (non-constitutional) law, the issue at hand has a constitutional dimension. This is because it involves defining the scope of the constitutional concept of "payroll", as provided for in the Brazilian Federal Constitution.
The recognition of general repercussion occurs in a context in which the Superior Court of Justice (STJ), when deciding Theme 1,170, held that social security contributions do apply to these amounts, on the grounds that they are salary-based in nature. As a result, the STF will ultimately decide whether this understanding should prevail or whether the payment should be reclassified as indemnity, which would exclude it from social security contributions.
There is currently no scheduled date for the judgment.
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Superior Court of Justice limits waiver of attorney's fees when the tax authority acknowledges the claim
The Second Panel of the Superior Court of Justice (STJ) ruled that the mere acknowledgment of the claim by the Federal Treasury does not automatically exempt it from paying statutory attorneys' fees. This understanding was established in Special Appeal No. 2,176,841, which addressed whether attorneys' fees could be excluded in a tax annulment lawsuit.
The Court held that the waiver of attorneys' fees is only possible in the specific situations expressly provided for in Article 19 of Law No. 10,522/2002, which governs circumstances in which the Federal Treasury may acknowledge a claim without bearing litigation costs. Outside those situations, the general rule of the Brazilian Code of Civil Procedure applies, under which the party that gave rise to the litigation must bear the attorneys' fees.
In the specific case, the STJ concluded that the Federal Treasury caused the dispute, and therefore its subsequent agreement with the taxpayer's claim does not eliminate its obligation to pay attorneys' fees. This reinforces a restrictive interpretation of the statutory exception.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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