Post by firoj1313 on Feb 12, 2024 5:10:39 GMT
For a long time, the Federal Supreme Court understood that the incidence of ICMS on the Cofins calculation basis was an infra-constitutional matter to be embraced by the Superior Court of Justice. Last year, however, the Court went back to study the issue. The trial, which has not yet been concluded, has six votes against one in favor of the taxpayer. In this specific case, the Supreme Court reviews its old position and considers an appeal from Auto Americano S/A (RE 240.785), a parts distributor, in which the company challenges the decision of the Federal Regional Court of the 3rd Region. The questioned ruling establishes the possibility of including ICMS values in the Cofins calculation base. The re-discussion of the topic was initiated by minister Marco Aurélio.
According to the minister, Cofins can only be applied to revenue, which is the sum of the values of business operations carried out. Therefore, any different value cannot be inserted into the Cofins calculation base. “If someone invoices ICMS, that someone is the State and not the seller of the goods. Overlooking the parameters specific to the institute, which is billing, implies manipulation that generates insecurity and, more than that, the Finland Email List duplicity of tax burden on a single title, the collection of the contribution without actual entry of any value, the collection considered, indeed, a disbursement”, said the minister in his vote. National Treasury attorney Fabrício Da Soller believes that the recent changes in the Supreme Court's position are due to substantial changes in its composition.
In the last four years, six new ministers took their seats at the Court: Joaquim Barbosa, Eros Grau, Carlos Ayres Britto, Cezar Peluso, Ricardo Lewandowski and Cármen Lúcia. Soller argues that legal security is a fundamental good that must be pursued by the entire society. “The Judiciary that sometimes decides one way, sometimes another, harms not only taxpayers but also the Union, companies and the attraction of investments to the country”, he states. In the specific case of the incidence of ICMS on the Cofins calculation basis, the prosecutor questions: “How many companies have had unfavorable final and unappealable decisions in this ICMS case on the Cofins calculation basis? And now, its competitors could potentially have a benefit that could bring about a competitive imbalance, which hinders the proper functioning of the economy.
According to the minister, Cofins can only be applied to revenue, which is the sum of the values of business operations carried out. Therefore, any different value cannot be inserted into the Cofins calculation base. “If someone invoices ICMS, that someone is the State and not the seller of the goods. Overlooking the parameters specific to the institute, which is billing, implies manipulation that generates insecurity and, more than that, the Finland Email List duplicity of tax burden on a single title, the collection of the contribution without actual entry of any value, the collection considered, indeed, a disbursement”, said the minister in his vote. National Treasury attorney Fabrício Da Soller believes that the recent changes in the Supreme Court's position are due to substantial changes in its composition.
In the last four years, six new ministers took their seats at the Court: Joaquim Barbosa, Eros Grau, Carlos Ayres Britto, Cezar Peluso, Ricardo Lewandowski and Cármen Lúcia. Soller argues that legal security is a fundamental good that must be pursued by the entire society. “The Judiciary that sometimes decides one way, sometimes another, harms not only taxpayers but also the Union, companies and the attraction of investments to the country”, he states. In the specific case of the incidence of ICMS on the Cofins calculation basis, the prosecutor questions: “How many companies have had unfavorable final and unappealable decisions in this ICMS case on the Cofins calculation basis? And now, its competitors could potentially have a benefit that could bring about a competitive imbalance, which hinders the proper functioning of the economy.