Taxation of Pis and Cofins on ICMS presumed credits. Understanding the reversal at Supreme Court.

Last April 8, the Full Bench of the Federal Supreme Court (STF) had already established a majority in the judgment of Extraordinary Appeal (RE) No. 835818, with recognized general repercussion, for the non-assessment of Pis and Cofins on presumed tax credits granted by the states and the Federal District. The Virtual Plenary was scheduled to close on the 12th, but on the 8th the score was already 6 to 5 in favor of the taxpayers, after Justice Dias Toffoli cast the deciding vote.

The case, however, may suffer a reversal. This is because STF Justice Gilmar Mendes has made a request to highlight the case, pursuant to paragraph 3 of article 21-B of the STF Internal Rules. With the request, the case is removed from the Virtual Plenary and forwarded for trial in person, with the publication of a new agenda. Remember that during the pandemic the Plenary is working electronically, through videoconferencing.

But the main effect of the request for highlighting is in article 4 of Resolution 642/2019, of the STF itself, which, in addition to stating that the lists or cases with a request for highlighting made by any minister will not be judged in a virtual environment, its § 2 determines that in cases of highlighting the trial will be restarted.

That is, in practice, according to STF rules, once the case is removed from the Virtual Plenary, all votes already cast are discarded. A new trial on the matter will be held in a face-to-face plenary session (currently electronic, by videoconference), to be scheduled by the president of the STF.

It is worth remembering that, prior to the request of Justice Gilmar Mendes, the following thesis had been proposed as a general repercussion, with the votes of all 11 Justices: "The inclusion of presumed credits from the Tax on Circulation of Goods and Services (ICMS) in the calculation basis of Cofins and the contribution to PIS is incompatible with the Federal Constitution.

Now, it is waiting for a new agenda and a new trial, without any forecast of when it will occur, since the request for highlighting does not have a deadline limit provided for in the STF's internal rules and, what may cause the case to be reversed, the favorable votes previously cast will be discarded and, Justice Gilmar Mendes himself, in addition to Justices Nunes Marques, Dias Toffoli, Luiz Fux, and Alexandre de Moraes were against the winning thesis.

Note: This article is informative and generic in nature, and does not constitute a legal opinion for any specific operation or business. For any additional information, please contact us at reginaldo@rastaxlaw.adv.br.

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