In a recent trial, the 1st Panel of the STF overturned one of the requests made by PGFN in the Motion to Clarify presented after the trial of RE 574,506, in 2017, in which the Plenary Session considered the inclusion of ICMS in the PIS and COFINS calculation basis unconstitutional .

The Tax Authorities intended the application of the effects of the leading case’s decision only until the enacting of Law No. 12,973/14 (i.e. 2015), since it changed the concept of gross revenue  and could give rise to the mitigation of the decision adopted in the decision of the RE 574,706.

In the aforementioned trial, brought to the STF by a taxpayer from Rio Grande do Sul, the Ministers of the 1st Panel of the STF, by 4 votes to one, understood that the Court’s decision issued in RE 574,706 must be applied even after the Law 12.973/14, once it was based on the constitutional concept of gross revenue, without being bound by any specific law. Thus, the entry into force of Law No. 12,973/14 does not change, under any perspective, the referred decision.

Although the decision has no effect erga omnes, its content will influence other decisions on the subject, given that some Federal Regional Courts have placed Law No. 12,973 / 14 as a time frame, according to the PGFN’s thesis.

Our team is available to assist in this and other tax law issues. Further information by e-mail: rmarques@zaslaw.com.br or zaslaw@zaslaw.com.br.