Cut excludes PIS/Cofins roaming

Cut excludes PIS/Cofins roaming

Decision of the 1st Section benefits telephone companies and standardizes the STJ's understanding on the subject

By Luiza Calegari — From São Paulo

The 1st Section of the Superior Court of Justice (STJ) defined that telephone companies can exclude from the PIS and Cofins calculation base amounts relating to interconnection or roaming, recorded as revenue and transferred to other companies. The decision standardizes the understanding for the 1st and 2nd Panels, which had divergent decisions on the matter.

Unanimously, the board followed the vote of the rapporteur, minister Teodoro Silva Santos. He highlighted that, when judging the “thesis of the century”, the Federal Supreme Court (STF) defined that third-party revenue cannot form the basis for calculating taxes.

“The amounts collected from their users by operators relating to interconnection to be passed on to other operators for the services provided, as they do not form part of the taxpayer's assets, do not constitute revenue/billing and, therefore, do not form the basis for calculating contributions to PIS and Cofins”, stated the minister in his vote (EREsp 1599065).

He rejected the Union's argument. For the National Treasury, the values related to interconnection and roaming arise from the provision of services, as opposed to belonging to third parties. In this case, therefore, they should be part of the company's revenue and be included in the PIS and Cofins calculation base.

Lawyer Eduardo Maneira, who worked on the case representing Oi, which was the winning party, explains that the company was able to prove that the interconnection values are third-party revenues, and not subcontracting costs. “The decision is absolutely in line with regulatory standards for telecommunications services, which state that interconnection and sharing of networks are mandatory”, he states.

Fernando Raposo, partner in the tax area at Bichara Advogados, calculates that the main effect of the decision will be retroactive. This is because interconnection technology was prevalent in fixed telephony, and the regulation of roaming services must be updated with the tax reform (Constitutional Amendment nº 132).

But, according to him, the understanding could also have a direct impact on other judgments by the STJ itself, in which telephone companies discuss the exclusion of this type of service from the calculation bases of the Telecommunications Services Universalization Fund (Fust) and the Fund for the Technological Development of Telecommunications (Funttel), which are contributions charged by the National Telecommunications Agency (Anatel). “The discussion is identical and the STJ must certainly follow the same path, because the calculation basis is the same”, he states.

In addition, says Raposo, other sectors subject to similar regulatory obligations may present this precedent to support the argument that this type of transfer, which must be charged to the client and passed on to another company, does not form part of the assets and, therefore, is not subject to tax.

Finally, the lawyer bets that this discussion will end at the STJ. In another appeal by Oi regarding the incidence of PIS and Cofins on interconnection revenue, the 2nd Panel of the STF had already recognized that the matter was infraconstitutional (RE 1203682) and returned the case to the STJ. Even if the Union appeals the decision, the Court must apply the same understanding to this case, says Raposo.

https://valor.globo.com/legislacao/noticia/2024/09/13/corte-exclui-roaming-do-pis-cofins.ghtml