Podcast LacLaw | Gross Up do ICMS - Conceito e mecanismo

Summary

The discussion centers on the implications of the Brazilian Supreme Court's decisions regarding the exclusion of ICMS from PIS and COFINS calculations. Key developments from 2017 to 2022 are highlighted, including legal interpretations that differentiate between collected and highlighted ICMS. The speakers emphasize the constitutional basis for excluding ICMS, arguing that improper inclusion contradicts court rulings and affects credit appropriation. This dialogue reflects the ongoing complexities in tax compliance and underscores the need for clarity in tax regulations for businesses in Brazil.

Takeaways

• 😀 The discussion focuses on the exclusion of ICMS from the calculation base of PIS and COFINS.
• 😀 The term 'grossap' refers to the method of calculating ICMS in relation to pricing and taxes.
• 😀 Key events in the timeline include the 2017 Supreme Court ruling that ICMS should not be included in the PIS and COFINS calculation.
• 😀 In 2019, the Receita Federal interpreted the Supreme Court's decision, stating that collected ICMS should be excluded from the calculation base.
• 😀 A 2020 ruling clarified whether highlighted (collected) or indicated (not collected) ICMS should be excluded.
• 😀 The 2022 legislation (Law 14592) further defined that ICMS should be excluded from the calculation base for both PIS and COFINS.
• 😀 There is ongoing debate about the interpretation of which ICMS should be excluded—highlighted or indicated.
• 😀 The Supreme Court's decisions are not advisory and respond only to specific queries raised.
• 😀 The principle established implies that any form of ICMS should not contribute to the calculation base for PIS and COFINS.
• 😀 The speakers emphasize that proper understanding and interpretation of tax law are essential for compliance and strategic planning.

Q & A

What is the main topic discussed in the transcript?

The transcript primarily discusses the legal and tax implications of ICMS (a Brazilian tax) in relation to PIS and COFINS contributions.

What decision was established by the Supreme Court in 2017 regarding ICMS?

In 2017, the Supreme Court concluded that ICMS should not be included in the calculation basis for PIS and COFINS.

How did the interpretation of ICMS change after the Supreme Court's ruling?

Following the ruling, the interpretation shifted to exclude the collected ICMS from the calculation base, leading to debates about whether the excluded ICMS should also affect the credit base.

What is meant by the term 'grossapp' in this context?

'Grossapp' refers to the inclusion of ICMS in the calculation base before any exclusions, a process that has raised questions about its legality and alignment with Supreme Court rulings.

What legislative changes occurred in December 2022 regarding ICMS?

The legislation altered the interpretation of ICMS, allowing for the exclusion of the ICMS incident from the calculation basis of PIS and COFINS, further clarifying the legal framework.

Why was there confusion regarding the types of ICMS to be excluded?

Confusion arose because the Federal Revenue interpreted the Supreme Court's decision to mean only the collected ICMS should be excluded, while the Supreme Court indicated that the highlighted (or stated) ICMS should be considered.

What is the significance of the term 'highlighted' ICMS in legal discussions?

'Highlighted' ICMS refers to the ICMS explicitly stated in invoices, which the Supreme Court clarified should be the basis for exclusion from the PIS and COFINS calculations.

How does the Supreme Court's ruling relate to the constitutional principle of tax calculation?

The ruling reinforces the constitutional principle that taxes should not be included in their own calculation bases, maintaining that ICMS should not be part of the PIS and COFINS calculation.

What challenges do companies face in light of these legal interpretations?

Companies face challenges in interpreting and applying the legal rulings consistently, which may affect their tax calculations and potential credits related to ICMS.

What is the role of the Federal Revenue in interpreting these rulings?

The Federal Revenue's role involves interpreting the Supreme Court's decisions and implementing them in tax collection practices, which has at times led to differing understandings of how to apply the law.