The Federal Court of Rio de Janeiro granted an injunction to a company guaranteeing its right to PIS and Cofins tax credits on personnel expenses agreed upon in a collective bargaining agreement. According to experts, this is the first favorable ruling for taxpayers in the state.
Favorable decisions involving collective bargaining agreements are rare. Another injunction was recently granted by the 2nd Federal Court with the Adjunct Federal Special Court (JEF) of Sete Lagoas (MG). It benefits a textile factory.
In both cases, taxpayers cite as precedent a 2018 decision by the Superior Court of Justice (STJ) in a repetitive appeal. On that occasion, the justices understood that the concept of input, for tax credits, should be interpreted according to the principles of essentiality and relevance (Topic 779, REsp 1,221,170).
In the case of Rio de Janeiro, the taxpayer attempted to claim PIS and Cofins credits, based on laws nº 10.637/2002 and nº 10.833/2003, on amounts spent on food, clothing and health insurance for workers, but the attempt was blocked by the Federal Revenue Service, arguing that these expenses do not fall under the concept of input (process nº 5004629-49.2026.4.02.5101).
According to the Brazilian Federal Revenue Service, based on Normative Instruction (IN) No. 2,121, expenses intended to enable employees' activities, "such as food, clothing, courses, health insurance, and life insurance," are not considered inputs. This exception was included in the IN in April 2025.
Pedro Grillo, from Brigagão Duque Estrada Advogados, explains, however, that the concept of relevance is linked to some regulatory requirement. Thus, if the expense is incurred due to some law or regulatory requirement, it would be possible to claim PIS and Cofins tax credits.
In the case analyzed, the company's expenses related to its workers were agreed upon in a collective bargaining agreement for the category. Since the enactment of the labor reform (Law No. 13,467 of 2017), collective bargaining agreements between companies and workers have the force of law. This determination was confirmed by the Supreme Federal Court (Topic 1046).
Based on the reform, this type of expense would fall under the relevance criterion adopted by the Superior Court of Justice (STJ), according to Grillo. However, most courts in the country disagree with this position, which demonstrates the importance of the injunction from the Federal Court of Rio de Janeiro. Even within the Regional Federal Court of Rio de Janeiro (TRF-2), the understanding is predominantly pro-tax authority.
In April 2025, for example, the 3rd Specialized Panel denied the appeal of a freight transport company, arguing that "expenses for uniforms, transportation vouchers, food, and health insurance, even if required by collective bargaining agreement, do not constitute inputs eligible to generate PIS/Cofins credits" (case no. 5094931-32.2023.4.02.5101).
In another case, the 4th Specialized Panel denied the appeal of an engineering company that wanted to offset expenses related to employee meal vouchers, transportation vouchers, and health insurance. "It is only characterized as an input when the subtraction of the good or service in question results in the impossibility of carrying out the business activity or, at a minimum, causes a substantial loss of quality," says the ruling (case no. 5049046-63.2021.4.02.5101).
Attorney Mariana Ferreira, from the firm Murayama, Affonso Ferreira e Mota Advogados, defended the company in the Federal Court case in Rio de Janeiro and points out that the decision may signal the beginning of a shift in the magistrates' stance on the matter.
“These collective agreements have legal force; they are mandatory. The taxpayer doesn't want to pay in order to take advantage of and obtain credit, but is obliged to incur this expense, which is therefore necessary to carry out the activity,” he states.
She adds that, since the new wording of the normative instruction is still recent, from April of last year, the debate is still very new, and there is room for changes in understanding. "The decisions may have been more unfavorable at first because there is resistance to adopting a different understanding at the beginning, but the success in this injunction may encourage other companies to fight for this right."“
According to Pedro Grillo, the preliminary injunction may offer "some hope" that the relevance criterion will be interpreted in a way that aligns with the STJ's (Superior Court of Justice) precedents. "The jurisprudence regarding this specific issue is not progressing as expected, in the sense of recognizing that these expenses meet the relevance criterion," he says.
The final word, the expert states, should once again rest with the Superior Court of Justice (STJ), when these individual challenges from companies begin to reach it, since the normative instruction issued by the Federal Revenue Service was not specifically questioned. "Ultimately, the final decision on the scope of this 2018 precedent and whether it could encompass these expenditures will rest with the STJ," he says.
In a statement to Valor, the Attorney General's Office for the National Treasury (PGFN) points out that the decision is preliminary and that it is evaluating the possibility of filing an appeal. "Furthermore, this is an isolated decision on the matter and is at odds with the jurisprudence of all Federal Regional Courts," the agency states.
Source: Valor Econômico