Recently, in a legal opinion attached to the writ of mandamus no. 5000538-78.2017.4.03.6110, the Federal Revenue Office stated that ICMS should be excluded from the calculation of PIS and COFINS credits. The understanding of the Federal Revenue Office is based on what was settled by the STF in the judgment of RE 574,706, which deals with the exclusion of ICMS from the PIS and COFINS calculation basis.
Although the aforementioned legal opinion has no erga omnes effects, as it is available in the specific court action records, its content reveals that the Federal Revenue Office intends to disallow the PIS and COFINS credits calculated on the ICMS highlighted in the acquisition invoice, in a clear attempt to reduce the economic benefit of taxpayers in relation to the exclusion of ICMS from the PIS and COFINS calculation basis. Although it is surprising, this positioning of the Federal Revenue Office was already expected by taxpayers since 2019, when IN 1.911/2019 revoked IN 404/2014 and failed to determine the inclusion of ICMS in the cost of goods and inputs for the purposes of PIS and COFINS credits.
However, any disallowance of PIS and COFINS credits on ICMS highlighted in the acquisition invoice is illegal because it violates articles 3, § 1, I, of Laws 10.637/2002 and 10.833/2003, which determine, respectively, that the PIS and COFINS credit must be calculated on the value of the goods acquired for resale and goods and services used as inputs in the provision of services or in the manufacture of goods and products. So much so, that IN 404/2004 expressly provided that the ICMS integrates the value of the acquisition cost of goods and services.
Although IN 404/2004 was revoked by IN 1.911/2019, which does not provide for the inclusion of ICMS in the cost of goods and products purchased, the fact is that the laws governing the incidence of PIS and COFINS have not changed, which makes the disallowance in question illegal. It is also inappropriate to try to use what was decided by the STF in the judgment of RE 574,706 as a basis for the disallowance, since the STF dealt only with the PIS and COFINS (debt) calculation basis without any reference to the calculation of contribution credits (credit).
For no other reason, there are Federal Courts decisions that are favorable to taxpayers (including writ of mandamus no. 5000538-78.2017.4.03.6110), in the sense that the intended disallowance of PIS and COFINS credits is totally unjustified. In our understanding, actually, the disallowance that the Federal Revenue Office is apparently preparing to make is totally illegal and must be questioned by taxpayers, either in a previous lawsuit (to avoid the disallowance) or in defense of a possible infraction notice.