A inconstitucionalidade da inclusão do ICMS na base de cálculo do PIS/PASEP e da COFINS

• Autor(a) principal: Costa, Larissa Freiria da
• Data de Publicação: 2017
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Institucional da UFU
• Texto Completo: https://repositorio.ufu.br/handle/123456789/19488
• topic: ICMS; PIS/PASEP; COFINS; Receita; Faturamento; Base de cálculo; Calculation basis; Revenues; Recipe; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO TRIBUTARIO

This paper deals with the unconstitutionality of the inclusion of the ICMS installment in the calculation basis of the PIS / PASEP and COFINS contributions, an extremely relevant and controversial topic that has been the subject of intense discussion in the Brazilian courts. The Federal Supreme Court faced the case on October 8, 2014, in the judgment of the Extraordinary Appeal No. 240,785/MG, when it ruled that the inclusion of ICMS in the calculation base of COFINS was unconstitutional (which has the same calculation basis as PIS/PASEP, although this was not the subject of the action). Although the decision had a notable influence on the other organs of the Judiciary, remained attached to the parties involved. The decision erga omnes effectively occurred only now, on March 15, 2017, when the Supreme Court judged the Extraordinary Appeal No. 574.706/PR, with general repercussion, establishing the thesis that ICMS does not compose the basis of calculation of PIS/PASEP and COFINS. There is also the Declaratory Action of Constitutionality No. 18/DF on the same subject, awaiting judgment. In order to seek recognition of the constitutionality of the inclusion of ICMS in the calculation basis of PIS/PASEP and COFINS and to avoid the loss of billions of reais in collection, the Public Treasury argues that, by virtue of its calculation "on the inside", ICMS cannot be dissociated from the revenue and total revenue of the taxing undertakings. In this paper, we intend to point out the failures of such arguments, in defense of the taxpayers, under the aegis of the Tax Law principles, with a mirror in the Commercial Law, showing that the concepts of billing and revenue cannot, in any way, encompass the amount related to ICMS.