In a virtual session concluded on August 17, 2024, the Supreme Federal Court (STF) removed the general repercussion of Topic No. 1,314, which pertains to the discussion about the incidence of PIS and COFINS on the Selic rate applied to the repetition of undue payments, determining that the issue does not involve constitutional matters.

As is well known, when companies make undue tax payments, the amounts refunded are adjusted by the Selic rate at the time of their return. However, this difference corresponding to the Selic rate must be subject to PIS and COFINS taxation. Taxpayers, however, argue that these amounts do not constitute new revenue or turnover but merely represent the restitution of an amount that was unduly taken from their assets.

Therefore, understanding that this tax levy is improper, many companies have resorted to the judiciary by filing writs of mandamus to secure their right to refrain from paying the aforementioned contributions levied on the Selic rate applied to tax refunds.

When called to rule on the matter, the Supreme Federal Court, unanimously, determined the absence of general repercussion of the controversy, stating: “The controversy over the incidence of PIS and COFINS on late payment interest and monetary correction (Selic rate) received in tax refund cases is infraconstitutional.” In other words, the STF considers this issue to be outside its jurisdiction, as it does not involve constitutional matters. Thus, it would be up to the STJ to settle the matter.

The First Section of the Superior Court of Justice (STJ) has already ruled on the matter when judging Topic No. 1,237 in June of this year. At that time, by unanimous vote, it ruled unfavorably to taxpayers and established the following thesis: “The interest amounts, calculated by the Selic rate or other indices, received in the case of the repetition of undue tax payments, in the return of judicial deposits, or in payments made due to late contractual obligations, are characterized as Gross Operational Revenue and are included in the calculation base for cumulative PIS/PASEP and COFINS contributions and, by integrating the broad concept of Gross Revenue, in the calculation base for non-cumulative PIS/PASEP and COFINS contributions.”

Following this decision, taxpayers filed motions for clarification to (i) exclude the established thesis in cases of PIS and COFINS collected under the cumulative regime, and (ii) expressly exclude interest related to judicial deposits and tax refunds from the calculation base of contributions owed by financial institutions.

The appeal has been included in the agenda for the session on August 28, at which time the STJ is expected to issue its definitive ruling on the matter.

The Tax Law Department at Marins Bertoldi Advogados remains vigilant to developments on this issue and is available to clarify any doubts and deepen the analysis according to each company’s specific situation.

By Enrique Grimberg Kohane e Daiana Oliveira