In a unanimous decision, the First Panel of the Superior Court of Justice (STJ) ruled that the Differential Rate (DIFAL) of ICMS is not part of the calculation base for PIS and Cofins contributions.
The additional taxation in question pertains to the difference in ICMS rates between the destination state and the origin state of goods or services in interstate transactions.
The justices applied the understanding established in Topic 69 of the Federal Supreme Court (STF). The decision was rendered in the judgment of REsp 2.128.785/RS, in an appeal filed by Teracom Telematica S/A.
In Topic 69/STF, commonly referred to as the “case of the century,” the Supreme Court ruled in 2017 that ICMS should not be included in the calculation base of these contributions, as it does not become part of the taxpayer’s assets and does not constitute revenue but is merely a cash inflow destined for public coffers.
This decision creates an important precedent in the Superior Court. This is significant because, on the one hand, the STF had previously deemed the matter to involve an analysis of infra-constitutional legislation, thus falling within the STJ’s jurisdiction. This perspective was observed, for example, in RE 1.469.440, decided in February 2024.
On the other hand, the STJ had previously maintained that the matter involved a constitutional issue and, therefore, fell under the jurisdiction of the STF. An example of this was the judgment of REsp 2.133.501/PR by the Second Panel in August 2024. At that time, Justice Mauro Campbell Marques, the reporting justice, declined to address the merits of the issue.
In this context, Justice Regina Helena Costa, the reporting justice in the DIFAL case, emphasized that the issue is a “derivative thesis” of Topic 69 and that the STF’s understanding in that case should be applied. Regina Helena highlighted that this is the first time the STJ has addressed the matter involving ICMS DIFAL.
It is important to note that the ruling was not issued in the context of a repetitive appeal, meaning it does not have binding effect. However, it will serve as a guiding precedent for future decisions on the matter. In this scenario, taxpayers may consider judicially challenging the application of ICMS DIFAL.
The Tax Law Department at Marins Bertoldi Advogados is closely monitoring the developments in this case and is available to address any questions on the topic, as well as to provide in-depth analyses tailored to each business’s specific circumstances.
By Enrique Grimberg Kohane
