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Sem sombra de dúvidas os recolhimentos do PIS (Programa de Integração Social) e da COFINS (Contribuição para o Financiamento da Seguridade Social) in the list of taxes mais onerous of the tax burden Brazilian, since it has and as a basis for the calculation faturamento bruto das sociedades empresárias, além de ter grande peso para a renda do país, pois abrange_cc781905-5cde -3194-bb3b-136bad5cf58d_most segments of the production chain Brazilian.


That is, considering the share that the government takes on revenue - 9.25% in the non-cumulative system and 3.65% in the cumulative system, on the company's revenue, depending on the case - , the question is of great repercussion and controversies in the business and legal world throughout its validity, one of them concerns its calculation basis.


It has been questioned in the STF (Supreme Federal Court), since mid-1998, whether it is correct to include ICMS (Tax on the Circulation of Goods and Services) in the basis for calculating contributions levied on the billings, such as PIS and COFINS, due to the Federal Tax Authorities.


On 03/15/2017, the STF, through the judgment of Extraordinary Appeal No. 574.706, decided that ICMS is not part of the PIS and COFINS calculation basis, by identifying it as a “value foreign to the concept of revenue or Revenue” of societies and as revenue and revenue of the State, not of companies.


On that occasion, a Ministra Carmen Lúcia highlighted in her vote that ICMS is transferred to the State or the Federal District, not adhering to the taxpayer's assets. Along the same lines, Justice Marco Aurélio, in his vote, highlighted  that “companies do not invoice ICMS, on the contrary, it reveals a disbursement to benefit the public law entity that has the competence to collect it from the company.” 


Well then. Based on the impossibility of including ICMS in the PIS and COFINS calculation basis, since until then there was its inclusion in the calculation basis, there is the possibility of claiming a refund of the tax collected until then.  


The path to restitution starts by preparing the detailed and updated spreadsheet over the last five years (60 months) for action instruction. After the res judicata of the action, a certificate of full content must be taken to the Federal Revenue that will ratify it and make as compensation to another tax or refund to the taxpayer.


They can request the recovery of imposto all PIS and COFINS taxpayers: legal entities governed by private law in general equivalent under the Income Tax legislation, including service providers, public companies and mixed capital companies and their subsidiaries, except for micro and small companies subject to the Simples Nacional.


PIS and COFINS are taxes calculated on Gross Revenue with percentual very significant, as already mentioned. The ICMS in all states of the federation can reach up to 25% depending on the types of products.


The estimated account on the savings that can accrue to the taxpayer is simple. To illustrate, we will use PIS and COFINS in the cumulative system, that is, 3.65%. and ICMS under  18%.


Considering a company with a turnover of R$1,000,000.00, we have an amount to be reimbursed per month equal to  R$6,570.00. And now check the value to be recovered in the last 5 years (value relative to multiplying this monthly value by 60). In other words, in our example, we would arrive at a hypothetical value, without monetary correction, of about R$ 394,200.00 enough to eliminate the payment of PIS and COFINS for more than 1 year.


Obviously, there is a need to analyze the issue, as not all legal entities pay PIS and COFINS, like micro and small companies that use the simplified contribution (Simples Nacional). For this reason, ask your lawyer or contact us. 

Tax Credit Recovery (Example with PIS and COFINS)
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