“PIS AND COFINS EX-OFFICIO ASSESSMENT. SAME TAX ACTION. DEDUCTION FROM THE TAX BA- SIS OF THE IRPJ/CSLL. APPLICABILITY

The PIS and COFINS assessed jointly, in the same action, are to be deducted in the reestablish- ment of the Net Income and the Taxable Income. The reason is that there is no legal impediment in this sense, as the ex-officio assessment does not imply the suspension of enforceability of the demanded taxes, which will only occur in case of a timely objection. The sanction for violations is the ex-officio fine, charged proportionally to the tax, and not the tax increase.”

The decision in question deals with Tax Assessment Notices issued for the collection of the Corporate Income Tax (“IRPJ”), Social Contribution on Net Income (“CSLL”), Contribution to the Employee Profit Par- ticipation Program (“Contribution to the PIS”), and of the Contribution for the Social Security Funding (“CO- FINS”), relative to the calendar years of 2007 and 2008, and due to the rejection of costs and credits of the Contribution to the PIS and COFINS, in connection with Invoices declared to be inadequate by the Treasury Office of the Federal District and whose payment was not proved by the taxpayer.

In an objection, the assessed Taxpayer claimed, among other arguments, that the rejected invoices rep- resent an effective purchase of goods intended to resale, and that any irregularities with the tax situation of the suppliers cannot affect him, as well as the need for a deduction of the Contribution to the PIS and COFINS, of ex-officio assessment, from the IRPJ CSLL tax basis.

The decision of the Federal Revenue Office of Judgment, which dismissed the objection, prevailed, uphold- ing the tax credit. Dissatisfied, the Taxpayer then filed a Voluntary Appeal with the CARF, which decided to partially grant the appeal only to accept the deduction of the Contribution to the PIS and COFINS from the IRPJ CSLL basis.

The reason is that, pursuant to the reporting Councilor’s vote, the deductibility of the taxes in the determi- nation of the Taxable Income, authorized by article 41 of Law no. 8.981/95, is objected by the taxes with suspended enforceability, however, the ex-officio assessment does not imply an automatic suspension of the enforceability of the tax credit, which only occurs with the filing of an objection.

Furthermore, there is no legal provision prohibiting the deductibility of the Contribution to the PIS and COFINS, assessed on an ex-officio basis, from the tax basis of the IRPJ CSLL subject matter of the same tax proceeding, and the Administrative Authority, when issuing the assessment, is to reestablish the Net Income and the Taxable Income in order to ascertain the due taxes, considering all the entries affecting them, pursuant to article 142 of the National Tax Code and to the principle of administration’s loyalty to the administered parties. That is, the nature of the obligation is not altered because it arises from an act of the Tax Authorities’ themselves, therefore, the normally deductible costs and expenses are to be considered in the assessment, under penalty of taxing a portion that does not correspond to the tax basis.

The reporting Councilor, however, views that in the event the assessment relative to the Contribution to the PIS and COFINS is canceled, it is up to the Taxpayer, after a final and unappealable decision has been ren- dered, to subject the IRPJ and the CSLL levied on such gain to taxation, under penalty of a new ex-officio assessment.