On 12\/01\/2023, Provisional Measure No. 1,159 was published, which aims to exclude the ICMS amount levied on the acquisition of goods from the calculation basis for PIS\/Pasep and COFINS Contribution credits.<\/p>\n\n\n\n
It changed \u00a72 of art.3 of Law 10.833\/2003. See how the new wording is:<\/p>\n\n\n\n
2nd The following amount will not be eligible for credit:<\/p>\n\n\n\n
III \u2013 the ICMS that has been levied on the acquisition transaction.<\/p>\n\n\n\n
It is undeniable that this will lead to an increase in taxation for companies subject to Non-Cumulative Contributions, but the objective of this MP is to regulate a point that was not discussed in the judgment of Extraordinary Appeal No. 574,706\/PR (The thesis of the century).<\/p>\n\n\n\n
The STF, when judging the issue, limited itself to defining that \u201call the value highlighted as ICMS must be excluded from the calculation basis of the PIS\/COFINS contribution\u201d. This concerns sales, nothing was said about the possibility of taking credit on the ICMS value in the acquisition.<\/p>\n\n\n\n
The PGFN itself, in its Opinion PGFN No. 14,483\/2021 addressed to the Tax Administration, concluded in relation to the topic:<\/p>\n\n\n\n
\u201cIt is not possible, based solely on the content of the judgment, to recalculate the credits determined in the entry transactions, either because the issue was not, nor could it have been, discussed in the proceedings;\u201d<\/p>\n\n\n\n
This was a relief for us Accountants, as we were assured that there would be no obstacles, up to now, to taking PIS and COFINS credit on the ICMS highlighted in the acquisition NF-e.<\/p>\n\n\n\n
In my opinion, MP No. 1,159 is intended to prevent \u201cdouble credit taking\u201d in favor of the taxpayer, for example:<\/p>\n\n\n\n
Acquisition of goods for resale \u2013 ICMS highlighted on the invoice: R$ 1,000.00;<\/p>\n\n\n\n
The taxpayer takes advantage of PIS and COFINS credits on R$1,000.00;<\/p>\n\n\n\n
Apply your margin and resell this merchandise;<\/p>\n\n\n\n
In the Sales Invoice, there is ICMS highlighted in the amount of R$ 2,000.00 (R$ 1,000.00 of own ICMS + R$ 1,000.00 relating to the ICMS of the purchase Invoice).<\/p>\n\n\n\n
The ICMS of the entire chain, which represents R$ 2,000.00, will be excluded from the PIS and COFINS calculation base.<\/p>\n\n\n\n
Note that the taxpayer took credit on the R$ 1,000.00 of ICMS incident on the purchase and excluded this ICMS also in the calculation basis of its sale.<\/p>\n\n\n\n
From this point of view, it initially seems \u201cacceptable\u201d that MP No. 1,159 prohibits credit on ICMS in the acquisition, since it may be fully excluded at the time of sale, according to the STF decision:<\/p>\n\n\n\n
\u201cThe ICMS to be excluded from the calculation basis of PIS and COFINS contributions is the one highlighted on the invoices\u201d<\/p>\n\n\n\n
But there is a very important point that is being ignored: What about taxpayers who sell goods subject to ICMS Tax Substitution? These taxpayers need to take the ICMS credit at the entry so that they can purge the ICMS from the entire chain of their revenues taxed by PIS and COFINS.<\/p>\n\n\n\n
In the sales NF-e of these taxpayers there is no highlight of ICMS to be excluded, the way they usually do it is to exclude the ICMS\/ST from their sales and take the ICMS credit in the input NF-e.<\/p>\n\n\n\n
If we interpret this MP literally (and this is how legislation dealing with tax benefits should be interpreted) and we no longer appropriate PIS and COFINS credits on the ICMS of the entry, the solution to avoid losses is: exclude from the sale both the ICMS\/ST value and the ICMS value of the supplier that came in the purchase NF-e.<\/p>\n\n\n\n
The sum of these two values represents the ICMS that will be levied on the entire taxation chain and which, according to the \u201cThesis of the Century\u201d, should not be part of the calculation basis for contributions.<\/p>\n\n\n\n