In a recent decision, the 24th Federal Court of Rio de Janeiro granted an injunction in another case regarding the exclusion of ISSQN from the PIS and COFINS contribution calculation base, by direct application of the understanding signed by the Supreme Court in RE 574,706/PR as to the impossibility of including ICMS in the base of said contributions.
Subject to the personal understanding of the Magistrate, Hon. Mrs. Italia Maria Zimardi Areas Poppe Bertozzi, in the sense that allowing the ISS to be excluded from the calculation base of the listed taxes would imply creating a judicial hypothesis of tax exemption without any legal provision, contrary to the provisions of art. 111 of the National Tax Code, was maintained, in this case, the understanding already settled in the Regional Federal Court of the 2nd Region in favor of the application, by analogy, of the thesis established by the SFC regarding the exclusion of ICMS from the basis of calculation of contributions to ISSQN, also included in said base.
With this precedent, it should be noted that the SFC’s thesis on the matter has been gaining more and more force in the Regional Courts, being applied in cases related to other taxes that also include in their respective bases of calculation (gross revenue or billing), values that do not fit these concepts, as in the case of IRPJ and CSLL, for example.
“It is believed that, although still pending final judgment in the Supreme Court, due to the motions for declaratory judgment opposed by the National Treasury, the thesis is maintained and enforced by the courts in a manner favorable to taxpayers”, said Bruno Zaroni, partner of Zaroni Advogados.
However, the impacts of this decision, although not yet properly measured, will certainly bring even greater discussions, especially in the economic and financial sphere of the State, in view of the crisis that the Government and society as a whole have been facing.