By Tax Area

The First Section of the Superior Court of Justice ("STJ"), under the rite of repetitive appeals (Subject Matter 1.093) - REsps 1.894.741/RS and 1.895.255/RS -, ruled that it was impossible to take PIS and Cofins credits on products subject to the non-cumulative regime (in which the collection of these taxes is concentrated in one stage of the production chain).

The discussion focused on the scope of Article 17 of Law No. 11.033/2004 and, by majority of votes, the position of the rapporteur, Minister Mauro Campbell Marques, was the winner, who considered that the device does not allow the use of credits on the acquisition of goods for resale in the non-cumulative regime. This is because the rapporteur stated that there is peaceful jurisprudence of the STJ (Subject Matter 844) in the sense that the principle of non-cumulativeness is not applicable to situations in which there is no cumulative taxation, as well as the fact that the provisions of Laws No. 10.637/2002 and 10.833/2003, which prohibit the creation of credits for the contribution to PIS and Cofins on the acquisition cost, have not been revoked by the aforementioned provision.

Thus, on that occasion, five theses were signed which, in short, determined:

(i) the prohibition of the constitution of PIS/Cofins credits on the components of the acquisition cost of goods subject to non-cumulative taxation;

(ii) that the benefit established by said Article 17 of Law No. 11.033/2004 is not restricted only to companies that are included in the Tax Regime for Incentive to the Modernization and Expansion of the Port Structure - Reporto;

(iii) that the provision refers only to the maintenance of credits and not to the constitution of credits for the contribution to PIS/Pasep and Cofins on the acquisition cost;

(iv) that the non-cumulative regime is not incompatible with the recording of a credit technique; and

(v) that the provision in question only authorizes that the credits generated in the acquisition of goods subject to non-cumulativeness are not reversed when the respective sales are carried out with suspension, exemption, zero rate or non-incidence of the contribution to PIS and Cofins.

Finally, it should be noted that the consolidation of this favorable understanding of the National Treasury affects large sectors of the national economy such as the wholesale and retail of beverages, drugs, cosmetics, car resale, auto parts, fuel, among others.