The judgment of the motions for clarification was set for December 5 in the case that discusses the inclusion of ICMS in the PIS and Cofins calculation basis. The ministers of the Supreme Federal Court (SFC) should analyze the embargoes of the National Treasury, which request the modulation of the effects of the decision that excluded the ICMS from the calculation base of contributions from March 2017. The entity requests that the decision be valid only from the understanding of the Supreme Court on the subject.

The modulation would make it impossible for taxpayers to request refunds that included ICMS on the basis of PIS and Cofins in recent years. Minister Cármen Lúcia, rapporteur of the case, determined in July that the motions should be guided. The analysis of the appeal, however, was seen as unlikely, since the Supreme Court had already released the trial agenda of the year, which did not include the process of ICMS on the basis of PIS and Cofins.

According to lawyer Bruno Zaroni, a partner at Zaroni Advogados, the motions for clarification filed by the National Treasury constitute yet another maneuver to postpone compliance with the ruling issued by the Supreme Court in the records of RE 574,706 (issue 69), which acknowledged the unconstitutionality of ICMS collection on the PIS/Cofins tax base. “The new postponement clashes presented by the National Treasury further intensify the existing level of legal uncertainty about the matter, as they prevent the payment of refunds due to taxpayers or the offsetting of the credits that they find”, he says.