The Supreme Federal Court, in March 2017, when concluding the judgment of Extraordinary Appeal n° 574.706, understood that the ICMS should not be included in the PIS and COFINS calculation basis. The understanding was that the ICMS did not characterize the taxpayer’s billing or gross revenue, because the highlighted values are passed on to the state tax authorities.
In the same sense as PIS and COFINS, we have the situation of the IRPJ and CSLL calculated in the presumed profit system.
The basis for calculating the IRPJ of companies opting for presumed profit, gross revenue, is the same basis for calculating PIS and COFINS, thus, as of the publication of Law 12.973/2014, the legal concept of gross revenue was unified to IRPJ in the form of calculation of presumed profit and for PIS/COFINS.
Analyzing Extraordinary Appeal 574.706, that the ICMS could not be included in the PIS / COFINS calculation base, since these contributions are levied on gross revenue, and the ICMS is not constituted as revenue, but as a cost that should be passed on to the State, the same understanding must be given in relation to the ICMS in the calculation basis of the IRPJ calculated by the presumed profit regime.
We will await this judgment, which may bring opportunities to reduce the tax burden for taxpayers.
Eliane Cunha is COO of the BPS-SP team at HLB Brasil