The Supreme Federal Court (STF) issued a decision in Appeal RE n. 559.937-RS providing the PIS/PASEP-Import contribution (levied at a 1.65% general rate) and the COFINS-Import contribution (levied at a 7.6% general rate) shall not apply, additionally, to the ICMS and the PIS/COFINS due on the importation.
In other words, these contributions only apply to the customs value – a numerical concept on which import taxes are assessed. According to this concept, constitutionally provided, the contributions are not levied on themselves (grossed up), neither on the ICMS due. The STF set forth the enlargement of the calculation basis, as provided by Law n. 10,865/04, is unconstitutional, as Federal Constitution prevails over ordinary law.
Although this decision seems logical and linear, it took almost 8 years to be favorably concluded to the taxpayers. In the meantime, several decisions have been issued against the import companies. Consequently, taxes overpaid in the last five fiscal years, which have not been offset against non-cumulative PIS/COFINS due, can be refunded, given that taxes due on the current and future importations (as stated by Law n. 10,865/04) shall be suspended.
Since the STF decision is effective for a specific case, each aggrieved importer shall file its own lawsuit to be granted a tax refund or offsetting. Notwithstanding the STF may “customize” a decision, which can be effective for past or future facts, we understand a judicial measure would be appropriate to protect the related rights and interests.
Walter Carlos Cardoso Henrique, President of the Tax Matters Committee of the Movimento em Defesa da Advocacia (MDA), Professor of Tax Law at PUC/SP, is the tax leader of Pacheco Neto, Sanden, Teisseire Advogados.
