The Supreme Federal Court (STF) has scheduled for judgment in a virtual session to be held between October 4 and 11, 2024, a matter with significant impact on the calculation of PIS and COFINS contributions on the financial revenues of companies subject to the non-cumulative regime.
The discussion revolves around the maintenance of the 50% reduction in the PIS and COFINS rates during the first quarter of 2023, in respect of the ninety-day rule (principle of noventena), established by Decree No. 11.322/2022, issued by then Vice President Hamilton Mourão, and revoked by Decree No. 11.374/2023, issued by President Lula. This is because, as they are social contributions, any increase must respect the ninety-day period before taking effect.
Thus, given that the decree increasing the PIS and COFINS rates on financial revenues was published in January 2023, taxpayers argue that for the first quarter of the 2023 fiscal year, companies would be entitled to maintain the reduced 50% rate.
This issue will now be decided by the Supreme Federal Court with binding effect for all taxpayers with pending legal actions, upon the judgment of Declaratory Action of Constitutionality No. 84 (ADC 84). In this case, the Attorney General’s Office (AGU) seeks a declaration of constitutionality of President Lula’s decree to apply the increased rates retroactively from January 2023.
It is important to recall that, shortly after ADC 84 was filed, the STF granted the AGU’s request for an injunction to suspend all judicial decisions in individual taxpayer cases that had prevented or suspended the increase in contributions on financial revenues during the ninety-day period. This injunction, favorable to the federal government, remains valid and in effect.
At the time of granting the aforementioned injunction, the then-relator, retired Justice Ricardo Lewandowski, reasoned that there was no increase or reestablishment of the PIS/COFINS rates on companies’ financial revenues, as the previous decree had not even come into effect.
Thus, according to Lewandowski, there was no need to observe the ninety-day rule. The majority of justices upheld the decision, with Justices André Mendonça and Rosa Weber dissenting. Justice Gilmar Mendes agreed with the relator with reservations. The case is now under the rapporteurship of Justice Cristiano Zanin.
The Tax Law Department of Marins Bertoldi Advogados remains attentive to the developments of this matter and is available to clarify any doubts and explore it further within each company’s specific context.
By Enrique Grimberg Kohane and Daiana Oliveira
