As widely disclosed in the country, the Federal Supreme Court (STF) has decided that the ICMS included in the price of services or goods should not be included in the calculation bases of the Contribution to PIS and COFINS.
The STF is yet to decide which ICMS should escape the reach of such contributions, whether the one stated in the invoices or the amount payable, ascertained on a monthly basis.
Notwithstanding the pending case at the STF, there are companies that have resorted to the Judiciary and have unappealable decisions according to which the ICMS in question is the one stated in the invoices. In many of these cases, offsetting of the amounts of PIS and COFINS unduly paid has already been carried out and declared to the Brazilian Federal Revenue Office (RFB).
In view of the significance of the amounts involved - it is estimated that more than R$ 200 billion are at stake - the RFB decided to set up an audit team to analyze the companies' credits, examine the offsetting carried out and even report to the Federal Public Prosecution Office facts that, in theory, constitute crimes.
In view of the upcoming audits, it is recommended that companies ensure that they have sufficient and proper documentation to support their PIS and COFINS credits. In cases where certain documents are no longer available (paper invoices relating to old periods, among others), it will be important to support the credits by presenting other evidence.
The tax consulting team of Barcellos Tucunduva Advogados([email protected]) can assist your company in proving such credits.
