The main arguments that grounded the decision considered that the enjoyment of ICMS credits due to the immune remittance abroad does not trigger taxable revenue. This is a mere recuperation of the economic burden concerning ICMS, expressly provided by Section 155, § 2, X, “a”, of the Federal Constitution. Moreover, this Section provides immunity to export transactions and ensures “the maintenance and possibility to offset the amount of tax charged on previous transactions and services”.
Thus, PIS and COFINS are not imposed on credits assigned to third parties, because this would violate constitutional provisions. For this reason, the accumulated credit balance can only be transferred to third parties after the remittance of the product abroad (Section 25, § 1, of LC 87/1996), which is deemed and export for the purposes of the immunity provided by Section 149, § 2, I, of the Federal Constitution.
Therefore, the Supreme Court decided that non-cumulative PIS and COFINS are not imposed on amounts assessed by an exporting company due to the transfer of these ICMS credits to a third party.
(Extraordinary Appeal No. 606,107. Available at: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=613636>. Accessed in: Nov. 2013).