Gas stations are entitled to PIS and Cofins credits

Report from Valor Econômico shows that fuel stations and distributors have obtained injunctions to ensure presumed PIS and Cofins credits on the purchase of diesel, LPG and airplane kerosene. Dr. Donovan Mazza Lessa, partner at Maneira Advogados, was interviewed to talk about the subject.

Gas stations are entitled to PIS and Cofins credits

There are injunctions and sentences in São Paulo, Rio and the Federal District

By Adriana Aguiar — From São Paulo

21/10/2022

Fuel stations and distributors have obtained in court the right to at least three months of presumed PIS and Cofins credits, at a rate of 9.25%, on the purchase of diesel, liquefied petroleum gas (LPG) and aviation kerosene. There are injunctions and sentences in the States of São Paulo and Rio de Janeiro and in the Federal District.

The thesis was raised after the publication of Provisional Measure No. 1,118/2022 – which lost its validity on September 29th – and Complementary Law (LC) No. 194, of June, which restricted tax benefits provided for in a previous rule – Complementary Law No. 192, of March.

LC 192, in article 9, reduced the PIS and Cofins rate to 0% for some items subject to the single-phase calculation system – such as diesel, LPG and aviation kerosene. But it allowed the maintenance of credits to legal entities in the chain, including the final acquirer – a benefit that was restricted by MP 1,118 and LC 194.

After the publication of the MP, the National Transport Confederation (CNT) appealed to the Federal Supreme Court (STF). He asked for the declaration of unconstitutionality or at least the application of the nineteen principle – the 90-day wait for the rule to take effect due to the increase in taxes, as determined by the Federal Constitution (ADI 7,181).

In an injunction, granted on June 7th, Minister Dias Toffoli determined that MP nº 1,118/22 will only take effect 90 days after the date of its publication, given the violation of the principle of precedence resulting from the indirect increase in taxes. On the 27th of the same month, the injunction was maintained by the Plenary of the Supreme Court.

According to the minister, “the current general rule that the acquisition of products not subject to the payment of contributions do not give rise to the right to credit under the non-cumulative regime (see item II of paragraph 2 of article 3 of Laws no. 10,637/02 and 10,833/03, included by Law no. 10,865/04) does not prevent the legislator from determining otherwise in specific cases.”

In this sense, he also highlighted that, when judging RE 1.043.313/RS, Theme 939, of his report, the STF Plenary decided that the legislator, who has the autonomy to deal with the non-cumulative nature of contributions to PIS and Cofins, can revoke the legal rule that provided for the possibility of determining certain credits within this system, as long as constitutional principles are respected general, such as equality and reasonableness.

After the decision, taxpayers began to request, according to lawyers, the taking of PIS and Cofins credits, at the rate of 9.25%, on the acquisition of exempted items (diesel, LPG and aviation kerosene) from March 11th to August 15th, 2022 – that is, 90 days after the publication of MP no. 1,118/2022.

One of the sentences favors a gas station chain. Judge Renata Costa Moreira Musse Lopes, from the 1st Federal Court of Nova Iguaçu (RJ), highlighted, in the decision, that diesel taxation is single-phase and, therefore, resellers and consumers would not be able to discount credits in their operations, according to the decision of the Superior Court of Justice (STJ) – Theme 1093. However, she added, the STF decision highlighted that nothing prevents the legislator from determining otherwise in specific cases (case no. 5005840-58.2022.4.02.5120).

According to lawyer Luiza Leite, partner at Silva Gonzaga Leite Advogados, who acted in the case, the best path is to file a writ of mandamus, so that the taxpayer's right to purchase diesel, LPG and aviation kerosene during the period is recognized.

In São Paulo, a gas station obtained an injunction to ensure the right to PIS and Cofins credits. The decision is from the 2nd Federal Court of Franca (SP). According to the judge, Samuel de Castro Barbosa Melo, the application of the same understanding established by the Supreme Court in the context of the precautionary measure issued in ADI 7.181/DF is justified so that the rule brought by Complementary Law nº 194/2022 only comes into force after the nineagesimal period of precedence (process nº 5001925-46.2022.4. 03.6113).

Another gas station obtained an injunction, granted by the 3rd Federal Court of Cuiabá (MT). Judge Cesar Augusto Bearsi also decided to apply the judgment of the Supreme Court (case no. 1015856-17.2022.4.01.3600).

There are still cases taken to the administrative route. But lawyer Luiza Leite remembers that, as there is no general decision on the issue in the STF, there is still room for the Federal Revenue to question the credits. “The Federal Revenue Service has already expressed its opinion in the legal proceedings in progress in the opposite direction, which leaves room for it to disallow the credit, which also implies the imposition of a fine that can reach 75% of the value”, he says.

According to lawyer Donovan Mazza Lessa, partner at Maneira Advogados, the STF's traditional jurisprudence has always been contrary to the application of the principle of precedence in cases of revocation of tax benefits. “However, at the right time, the topic is undergoing review and currently, the understanding that the principle also applies to cases of revocation of tax benefits has prevailed,” he states.

Now, he adds, the decisions have been aligned with what was defined by the Supreme Court. “However, it must be remembered that, despite being an important precedent, the STF's decision on the matter is provisional, as it was taken as a precautionary measure, and must still be reaffirmed when the ADI's merits are judged.

When contacted by Valor, the Attorney General's Office of the National Treasury (PGFN) did not respond until press time.

https://valor.globo.com/legislacao/noticia/2022/10/21/postos-de-combustiveis-obtem-direito-a-creditos-de-pis-e-cofins.ghtml