On October 23, 2018, the COSIT Answer to Advance Tax Ruling Request No. 13/2018 was published in the Official Gazette with the purpose of clarifying the proceeding that must be adopted in the fulfillment of final judicial decisions that rules in favor of the exclusion of ICMS from PIS and COFINS calculation basis. Although it expressly refers to the final judicial decisions, pointing out that the National Treasury Attorney's Office already requested additional clarification about the proceedings for the exclusion, the conclusions reached can be understood as an indication of the proceeding that the Federal Revenue Office will request after the decision issued in Extraordinary Appeal No. 574.706/PR becomes final.
In summary, there were three main questions resolved, with Tax Authorities concluding that:
- The amount to be excluded from the PIS and COFINS calculation basis is in relation to the ICMS payable, that is, the result from difference between the value of the debits and the amount of existing credits, including those resulting from tax benefits or deductions. In the case that the taxpayer accrues a credit balance at the end of the calculation period (monthly), there will not be any remaining ICMS amount to be excluded from PIS and COFINS calculation basis;
- In the case that the taxpayer accrues revenues subject to more than one method of calculation of PIS and COFINS (cumulative and non-cumulative) or subject to different tax rates, the exclusion of ICMS payable must be made based on the proportion between the revenues, which is calculated based on the CST Codes (the so-called "Tax Status Codes", or "Códigos de Situção Tributária") already required by the EFD-Contribuições program. After the proportion is defined, the taxpayer must exclude the corresponding ICMS from each revenue type;
- The proof of payment for the amount of ICMS payable must preferably use the information provided on EFD-ICMS/IPI, through the amounts included in item 13 from Registry E110 of Block E, as well as in item 11 from Registry 1920 (called "Sub-apuração do ICMS"), if applicable. Notwithstanding, proof of payment of the ICMS payable can be demonstrated through payment guides or any other documents provided for in the state legislation.
There is no restriction for using alternative documents to prove payment of the ICMS, but in the conclusion to the advance tax ruling request, there is an observation that the alternative forms would be related to periods when EFD-ICMS/IPI are scheduled for submission.
Finally, the COSIT Answer clarifies that proceedings and conclusions mentioned would only apply in the case that the final judicial decision is not explicit and comprehensive.