STJ states that fund manager must collect ISS on services provided to companies abroad

STJ states that fund manager must pay ISS on services provided to companies abroad.
AREsp 1.150.353/SP

Investment fund management companies are required to pay Services Tax (ISS) in Brazil, regardless of providing services to companies residing abroad. This is the understanding given, in a 4×1 score, by the 1st Panel of the Superior Court of Justice (STJ).

The understanding introduced by the Rapporteur, Minister Gurgel de Faria, prevailed in the trial. For Ministers Benedito Gonçalves and Regina Helena Costa, who followed the Rapporteur's vote, it is necessary to analyze the peculiarities of each case, as there is the possibility of making different decisions between them. Minister Sérgio Kukina followed the same position.

At the time, the then Minister Napoleão Nunes Maia Filho was defeated, who disagreed with the others stating that there is no ISS incidence when the result of the service provided is outside the country. He also added that the legislation on the subject aims to attract foreign investment to the Brazilian economy, making it unfeasible, therefore, to charge the tax.

For the STJ, royalties received by a cooperative are part of the PIS and COFINS calculation basis.
REsp 1.520.184/PR

The Superior Court of Justice (STJ) decided that PIS/Cofins is levied on royalties received by cooperatives. The judgment was unanimous among the Court's Ministers in order to reverse the decision that determined the refund of taxes collected between 2002 and 2004 by the Union, which had been handed down by the Federal Regional Court of the 4th Region (TRF-4).

The Court followed the vote of Minister Rapporteur Benedito Gonçalves, in the sense that there is a direct relationship between royalties arising from technology developed with the social objective of the cooperative, which does not constitute non-operational revenue. In the same sense, following the Rapporteur's vote, Minister Gurgel de Faria claimed that “there is no way to understand that the aforementioned amounts should not be offered for taxation, as they are part of the concept of revenue”.

That said, they agreed that the royalties received by the cooperative must be part of the PIS and Cofins calculation basis.

Carf decides that medical and health plan expenses do not generate PIS/Cofins credits.
Carf Process nº 16682.721192/2018-37

The 2nd Panel of the 4th Chamber of the 3rd Section of the Administrative Council of Tax Appeals (Carf) adopted the understanding that it is not possible to take PIS and Cofins credits on medical expenses and health plans for company employees. The position was unanimously given, following as a reference the vote of the Rapporteur, who claimed the possibility of only considering essential or relevant expenses in the company's production process as inputs.

The Board understood that the concept of inputs established within the scope of the Superior Court of Justice (STJ) in Special Appeal No. 1,221,170 must be applied in the case in question (“the concept of input must be assessed in light of the criteria of essentiality or relevance, that is, considering the indispensability or importance of a given item – good or service – for the development of the economic activity carried out by the taxpayer”). From this, the Rapporteur claimed that “there is no direct relationship between the service provided and medical expenses”, as these are auxiliary in nature, and not essential to the service.

STF decides on the constitutionality of the taxation of bank deposits of unproven origin.
RE 855.649; General Repercussion Theme nº 842

The Virtual Plenary of the Federal Supreme Court (STF) handed down a decision in favor of the collection by the Union of Personal Income Tax (IRPF) on bank deposits of unproven origin. The understanding validates the constitutionality of article 42 of Law No. 9,430/1996, which defines as omission of revenue or income amounts credited to a bank account without proof by the holder of the origin of the resources used in operations.

At the time, the position of Minister Alexandre de Moraes prevailed over that brought by the Rapporteur, Minister Marco Aurélio, who claimed the unconstitutionality of the aforementioned article. For the majority of the Plenary, the omission of revenue contributes to the tax authorities' difficulty in obtaining information about the origin of deposits made into the taxpayer's current account and the precise value of revenue and taxable income. In this context, the burden of proof is on the account holder, as they acted negligently.

The following thesis of general repercussion was established: “Article 42 of Law No. 9,430/1996 is constitutional.”

STJ publishes new summary on ICMS collection.
STJ Summary No. 649

The Superior Court of Justice (STJ) published a new ruling that prevents the collection of Tax on the Circulation of Goods and Services (ICMS) on the transport of goods destined abroad. The statement was approved by the Ministers of the 1st Panel and binds all state courts to its text.

The final wording: “ICMS is not levied on interstate transportation services for goods destined abroad.”

STJ Summary nº 649