In a unanimous decision, the Administrative Council of Tax Appeals (Carf) recognized the right of a multinational beverage company to exclude ICMS from the calculation base of contributions to PIS and Cofins, even under the special taxation regime for cold beverages. This decision, formalized in Ruling No. 3302-014.106, represents an important milestone for companies in various sectors operating under special taxation regimes, including the bioenergy sector in ethanol operations.
The case's rapporteur, Mariel Orsi Gameiro, emphasized that the concept of revenue or turnover should not be limited by the form of taxation. "It must be stated that there is an inclusion of ICMS, and the method for its calculation is the coefficient of the PIS and Cofins rates, which will influence the amount to be demanded for the contributions, per liter unit," stated Gameiro. She reinforced that the adoption of the special regime, based on measurement per liter unit and average market prices, does not distort the constitutional concept of revenue and turnover, according to the precedent established by the Supreme Federal Court (STF) in RE 574.706.
Otávio Massa, a tax specialist certified by the Federal Institute of Rio Grande do Sul (IFRS) and CEO of Evoinc, commented on the importance of the decision: "With Carf's endorsement on this issue, the exclusion of ICMS in PIS/Cofins for operations taxed by ad rem rates gains greater legal certainty. Both the Brazilian Federal Revenue (RFB) and the Judiciary have been issuing incorrect decisions on the matter, generating fear and insecurity for taxpayers. This was a long-awaited decision for us."
The Carf decision also criticized Cosit's Consultation Solution No. 177, dated May 31, 2019, which had been used as the basis for the tax assessment. According to the ruling, this consultation solution, initially applied to the fuel sector, has been legally challenged due to a mistaken technical understanding, as per other first-instance judicial decisions.
For the multinational beverage company, the decision ensures billion-dollar savings in the amounts paid as PIS/Cofins, illustrating how efficient tax advisory services can identify tax optimization opportunities, ensuring greater financial sustainability and competitiveness for their clients. "This Carf decision sets an important precedent for the beverage sector and other industries subject to special taxation regimes, consolidating a fairer interpretation aligned with constitutional principles," stated Massa.
The repercussion of this decision is broad and may benefit numerous companies operating under special taxation regimes. Otávio Massa advises that other companies interested in claiming this right should first conduct a detailed analysis of their tax operations and then file lawsuits or administrative appeals. "I recommend that companies consult their legal and tax departments to assess the feasibility of claiming the exclusion of ICMS from the PIS/Cofins calculation base. This Carf precedent strengthens the legal argument and increases the chances of success in court," concluded Massa.
The repercussion of this case may influence future administrative and judicial decisions, providing greater clarity and legal certainty for Brazilian companies regarding the taxation of their revenues and commercial operations.
Source: Otávio Massa, tax specialist with certification from the Federal Institute of Rio Grande do Sul (IFRS) and CEO of Evoinc.
