The 1st Panel of the Superior Chamber of the Carf decided that discounts obtained with the advance payment of loan installments with resources from the Goi\u00e1s State Industrialization Participation and Promotion Fund (Fomentar) do not form the basis for calculating the PIS contribution. By a vote of five to three in process 13116.001312\/2008-41, the councilors understood that the amounts correspond to a subsidy for investment, and not for cost coverage, as understood by the inspection, and therefore, the taxpayer has the right to be excluded from the basis.<\/p>\n\n\n\n
Cases related to PIS and Cofins are under the jurisdiction of the 3rd Section of Carf. However, since the taxpayer was charged with collection of IRPJ and CSLL in the same inspection operation that generated the demand for contributions, the case was sent to the 1st Section and reached the 1st Panel of the Superior Chamber.<\/p>\n\n\n\n
The case reached the administrative court after the tax authorities issued a notice of violation demanding the collection of PIS and Cofins for the years 2003, 2006 and 2007. The company used the discounts for the advance payment of installments of loans from Fomentar as a subsidy for investment, that is, for the implementation or expansion of an economic enterprise. However, according to the tax authorities, the funds were intended to reinforce the company's working capital.<\/p>\n\n\n\n
The tax authorities also considered that there was no legal provision for excluding the amounts from the calculation basis in the case of PIS and Cofins, since Law 9.718\/98 provides that the contributions will be calculated on the taxpayer's gross revenue. The lower court, however, voted to exclude the discounts on loans from the calculation basis of the contributions and the Treasury appealed.<\/p>\n\n\n\n
LC 160<\/p>\n\n\n\n
In the 1st Panel of the Superior Court, the counselors only heard the discussion about the PIS contribution. Neolatina's lawyer, Rodrigo Louren\u00e7o, argued that, in a recent trial of a case involving the same taxpayer (13116.001311\/2008-04), the panel determined that the amounts related to the discounts did not form part of the IRPJ and CSLL basis.<\/p>\n\n\n\n
The defender highlighted that the basis of the decision was LC 160\/17 and compliance with the requirement of article 30 of Law 12.973\/14, to record the amounts in profit reserves, which may only be used to absorb losses or increase share capital.<\/p>\n\n\n\n
However, the rapporteur, counselor Andrea Duek Simantob, granted the appeal filed by the Treasury to reform the lower panel's decision. According to her, when deciding on the non-cumulative incidence of PIS and Cofins, laws 10.637\/2003 and 10.833\/2003 maintained the understanding regarding the calculation basis for contributions provided for in Law 9.718\/98. She also stated that LC 160 does not apply to taxable events prior to Law 12.973 of 2014.<\/p>\n\n\n\n
Divergence<\/p>\n\n\n\n
Councilor L\u00edvia de Carli Germano dissented. She claimed that the 3rd Panel of the Superior Chamber, which has jurisdiction to judge cases involving PIS and Cofins, has case law favorable to the taxpayer in similar cases.<\/p>\n\n\n\n
Councilor Fernando Brasil de Oliveira Pinto, who supported the dissent, cited the decisions of the 3rd Panel and also LC 160, which, according to him, equated all subsidies to investment subsidies. Three other councilors supported the dissenting position, and the rapporteur and councilors Edeli Bessa and Luiz Tadeu Matosinho Machado were defeated.<\/p>\n\n\n\n