STJ decides to prohibit PIS and COFINS credits in the single-phase regime

STJ decides to prohibit PIS and COFINS credits in the single-phase regime
EREsp 1.109.354/SP; EREsp 1.768.224/RS

The 1st Section of the Superior Court of Justice (STJ) decided that it is not possible for companies to take PIS and Cofins credits on products subject to the single-phase taxation regime. The majority of Ministers followed the understanding brought by the Rapporteur, Minister Gurgel de Faria, that it is impossible to take credits when there is no successive incidence of contributions.

Minister Regina Helena Costa, when disagreeing with the Rapporteur, argued that the authorization brought by the Reporto law (Law nº 11,033/2004) would be applicable to cases in which companies do not comply with the special regime, which occurs with those in the single-phase taxation sectors. In this way, the provisions of Laws nº 10,637/2002 and 10,833/2003, which prohibit the taking of credits under a single-phase regime, would be tacitly revoked. Minister Napoleão Maia Nunes Filho, who claimed that the law did not restrict Reporto from allowing credit in situations where the tax is not collected, was also defeated.

Presumptive ICMS credit is not part of the IRPJ and CSLL calculation basis, the STJ decides
EREsp 1,443,771

In a judgment held last Wednesday, April 14, the 1st Section of the Superior Court of Justice (STJ) decided that the presumed credits for Tax on the Circulation of Goods and Services (ICMS) do not form the basis for calculating Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL). The appeal was partially granted.

At the time, the National Treasury requested recognition by the Court that the amounts referring to Reintegra and the presumed ICMS credit do not make up the calculation basis for IRPJ and CSLL, as they are not the profit of the legal entity. Minister Regina Helena Costa stated that the divergence related to the presumed ICMS credit would be overcome, with extensive jurisprudence in the STJ. The understanding was followed by the majority of Ministers.

On the other hand, Minister Napoleão Maia Nunes Filho was defeated, who granted the taxpayer's appeal to dismiss the collection of IRPJ and CSLL on the presumed ICMS credit.

STF decides that immune entities should not pay IOF on short-term financial operations
RE 611.510

In a virtual Plenary session, the Federal Supreme Court (STF) decided that immune entities (unions, non-profit educational and social assistance institutions and political parties) should not pay the Tax on Financial Operations (IOF) levied on short-term financial operations. The decision was unanimous among the Ministers.

In her vote, Minister Rosa Weber, rapporteur of the case, took a stand against the request made by the Union, which argued that the tax would not fit into the hypotheses of immunity as it burdens financial operations, and not the assets, income or services of taxpayers. There is, therefore, no contradiction to article 150, VI, paragraph c of the Federal Constitution, as maintained by the appellant.

At the time, the following thesis was proposed: “the immunity guaranteed by article 150, VI, ‘c’, of the Constitution of the Republic to political parties, including their foundations, workers' union entities and non-profit educational and social assistance institutions that meet the requirements of the law, reaches the IOF, including the incident on financial investments”.

RE 611.510


Chamber of Deputies approves extension of the deadline for submitting the IRPF declaration
PL 639/2021

Project Law No. 639/2021 was approved in a session of the Chamber of Deputies, which deals with the extension of the deadline for submitting the Personal Income Tax (IRPF) declaration to July 31, 2021. The text also provides for the installment, in up to six equal, monthly and successive installments, of the balance of the tax payable in relation to the fiscal year. 2021, in the calendar year 2020.

The deadline defined by the Legislature extends by two months that defined by the Federal Revenue, which would extend the delivery of the declaration until May 31st. In time, the refund schedule was not changed.

The PL still needs to be sanctioned by the President of the Republic.

PL 639/2021


New ICMS Agreements published
ICMS Agreement 38/21; ICMS Agreement 39/21; ICMS Agreement 40/21; ICMS Agreement 41/21; ICMS Agreement 47/21

ICMS Agreement 38/21, of April 8, 2021
Provides for the adhesion of the States of Espírito Santo, Goiás, Maranhão, Pará, Rio de Janeiro and Rio de Grande do Sul and amends ICMS Agreement 66/20, which authorizes the federated units mentioned to grant exemption from ICMS on internal operations and services and imports of goods intended for use within the scope of measures to prevent contagion, combat and contingency of the pandemic of respiratory viral infectious disease caused by the new coronavirus agents (SARS-CoV-2), carried out by a state or municipal public administration body, its Foundations and Authorities.

ICMS Agreement 39/21, of April 8, 2021
Amends ICMS Agreement 64/20, which authorizes States and the Federal District not to demand ICMS due for non-compliance with commitments assumed as a requirement for the granting of tax benefits provided for in ICMS Agreement 73/16 and the ICMS Agreement 188/17, as well as reinstituted under the terms of Complementary Law No. 160/17 and ICMS Agreement 190/17, when they derive exclusively from the negative economic effects related to the pandemic of the respiratory viral infectious disease caused by the new Coronavirus.

ICMS Agreement 40/21, of April 8, 2021
Provides for the adhesion of the State of São Paulo and amends ICMS Agreement 63/20, which authorizes the federated units mentioned to grant exemption from ICMS applicable to operations and corresponding transport service provision carried out within the scope of measures to prevent contagion and combat the pandemic caused by the new agent of Coronavirus (SARS-CoV-2).

ICMS Agreement 41/21, of April 8, 2021
Authorizes the federated units mentioned to grant exemption from ICMS levied on internal operations and imports from abroad, as well as the corresponding transport service provision, carried out with medicinal oxygen and authorizes the federated units to grant exemption from ICMS levied on operations and interstate transport service provision with medicinal oxygen intended to the State of Maranhão.

ICMS Agreement 47/21, of April 8, 2021
Amends ICMS Agreement 87/02, which grants exemption from ICMS in operations with pharmaceuticals and medicines destined for Federal, State and Municipal Direct Public Administration bodies.

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