In a unanimous decision, The Administrative Council of Tax Appeals (Carf) recognized the right of a beverage multinational 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 Judgment No. 3302-014.106, represents an important milestone for companies in various sectors that operate under special tax regimes, including the bioenergy sector in ethanol operations
The rapporteur of the case, Mariel Orsi Gameiro, highlighted that the concept of revenue or billing should not be limited by the form of taxation. "It can be stated that there is inclusion of ICMS", and the way in which the calculation is made for this is the coefficient of the PIS and Cofins rates, that will influence the amount to be required for the contributions, according to the unit of liter, Gameiro stated. She emphasized that the adoption of the special regime, based on measurement per liter and average market prices, it does not disrupt the constitutional concept of revenue and billing, according to the jurisprudence established by the Federal Supreme Court (STF) in RE 574.706
Otávio Massa, tax specialist trained by the Federal Institute of Rio Grande do Sul (IFRS) and CEO of Evoinc, commented on the importance of the decision: "With the endorsement of Carf on this issue, a exclusão do ICMS no PIS/Cofins nas operações tributadas por alíquotas ad rem passa a ter maior segurança jurídica. Both the Federal Revenue of Brazil (RFB) and the Judiciary have issued incorrect decisions regarding the subject, generating fear and insecurity for taxpayers. It was a decision we had been eagerly awaiting.”
The Carf decision also criticized Consultation Solution No. 177 from Cosit, dated May 31, 2019, that had been used as the basis for the tax assessment. According to the ruling, this query solution, initially applied to the fuel sector, has been challenged in court due to incorrect technical understanding, according to other first instance court decisions
For the beverage multinational, a decisão assegura uma economia bilionária nos valores pagos a título de PIS/Cofins, illustrating how an efficient tax advisory can identify opportunities for tax optimization, ensuring greater financial sustainability and competitiveness for its clients. "This decision from Carf sets an important precedent for the beverage sector and other industries subject to special tax regimes", consolidating a fairer interpretation aligned with constitutional principles, Massa stated
The impact of this decision is broad and can benefit numerous companies operating under special tax regimes. Otávio Massa advises that other companies interested in seeking this right should first conduct a detailed analysis of their tax operations and, next, file lawsuits or administrative appeals. “Recomendo que as empresas consultem seus departamentos jurídicos e tributários para avaliar a viabilidade de pleitear a exclusão do ICMS da base de cálculo do PIS/Cofins. This precedent from Carf strengthens legal arguments and increases the chances of success in the courts,"concluded Massa
The repercussions 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 a degree from the Federal Institute of Rio Grande do Sul (IFRS) and CEO of Evoinc
