Tax Law, Corporate Law and Compliance
ICMS Tax Substitution and its impact on the value that integrates the cost of goods for purposes of credits of PIS and COFINS Autor: Guilherme Casulo Velho OAB/RS 45.952 Coordenador da Área Tributária e Societária da Scalzilli.fmv
The ICMS - ST as part of the cost value of the merchandise for purposes of credit of PIS and COFINS , is an issue that has been much discussed , especially in view of query solutions with different results within the same framework of the 4th Region Fiscal .
Having the said solutions the following menus :
Query Solving Fiscal 4th Region No. 73 OF 08/10/2012 ( Federal Standard - Published in THE on Oct 26, 2012)
SUBJECT: Contribution to Social Security Financing - COFINS
SUMMARY: ICMS - REPLACEMENT TAX . INABILITY TO credited . The VAT collected on the tax substitution does not compose the basis of calculating the credits of non-cumulative calculation of COFINS payable by the taxpayer replaced .
LAWS : Law No. 10,833 , 2003 , art. 3rd , I; SRF No. 404 , 2004 , art. 8, § 3 , II ; CST Opinion No. 77, 1986 .
SUBJECT: PIS / Pasep
SUMMARY: ICMS - REPLACEMENT TAX . INABILITY TO credited . The VAT collected on the tax substitution does not compose the basis of calculating the credits of non-cumulative calculation of PIS / Pasep due by the taxpayer replaced .
LAWS : Law No. 10,637 , of 2002, art . 3rd , I; SRF No. 404 , 2004 , art. 8, § 3 , II ; CST Opinion No. 77, 1986 .
OLIVE ISABEL CRISTINA GONZAGA
chief
( our emphasis)
yet,
Query Solving Fiscal 4th Region No. 60 OF 17/08/2012 ( Federal Standard - Published in THE 23 Aug 2012)
SUBJECT: Income Tax of Legal Entities - Income tax
SUMMARY: ICMS - REPLACEMENT TAX . ACCOUNTING . The value for the ICMS tax substitution , retained by the supplier replaced the taxpayer under state law , is part of the cost of their goods , as it is not recoverable by the latter , and therefore can not be recorded directly as expenses tax , lest undue reduction of taxable income for the period as of which the aforementioned goods not sold .
LAWS : State Decree ( AL ) No. 35,245 , 1991 , arts. 428 and 429 ; Federal Decree No. 3000 , 1999 ( RIR/1999 ), art . 289 , " caption " and § § 1 and 3; Normative Instruction n º 51 , 1978 , arts , 3rd and 6th .
OLIVE ISABEL CRISTINA GONZAGA
chief
As shown in the Solution Consultation No. 73/12 , the ICMS - ST does not form the basis of the PIS and COFINS . Unlike in Solution Consultation No. 60/12 is the same factual situation , but there is a solution diverging .
With the decisions referred to above in mind , we must look to § 1 of Art . 289 of the Income Tax Regulations - RIR/99 , but let's see :
"Art 289 . The cost of goods resold and the materials used will be determined based on permanent record inventory or the value of existing inventories , according to the Book Inventory at the end of the calculation period ( Decree - Law No. 1,598 of 1977 , art. 14 ) .
§ 1 The cost of goods for resale understand the shipping and insurance to the establishment of the taxpayer and the tax payable on the acquisition or importation ( Decree - Law No. 1.598 of 1977 , art. 13 ) .
( ... ) "
( grifamos and underline )
Versa , therefore, the said device on the taxes due on the purchase, stating that they understand the cost of goods .
In systematic replacement tax ( ICMS - ST ) , the substitute taxpayer ( industrial , manufacturer, benefactor or importer ) , who assumes responsibility for the calculation and payment of ICMS on all future operations and that presumably occur until the product reaches the consumer end .
It is noteworthy that the tax substitution , the AMM [ 1 ] - Value Added Margin - is the projection of profit in future operations , being duly adjusted to express normal market conditions , resulting in identical tax burden that would be in the normal taxation .
Thus, the Taxpayer Substitute ( eg industrial ) has withheld and paid on a final tribute , with no more need to talk about refunds or payments . Thus , the tax on the tax substitution can not be supplemented or replaced .
Reinforcing the issue of excluding ICMS calculation basis of the contributions here and treated , with respect to the right of the PIS [ 2 ] and COFINS [ 3 ] , it is provided by law and the ICMS - ST and should compose the cost of acquisition of the goods in accordance with § 3 of art . 289 of RIR/99 , but let's see :
"Art 289 . The cost of goods resold and the materials used will be determined based on permanent record inventory or the value of existing inventories , according to the Book Inventory at the end of the calculation period ( Decree - Law No. 1,598 of 1977 , art. 14 ) .
( ... )
§ 3 does not include the cost of taxes recoverable through credits in the tax . " ( Emphasis added )
We conclude that the cost of acquisition of the goods shall be composed also by ICMS - ST , considering that the substitute taxpayer is taxable in operations under the ICMS tax substitution and that this exaction occurs permanently in which is already built into the total supply of the later stages and therefore unrecoverable , because it gives you a tax credit. It is worth highlighting that this question must be ratified , or in administrative procedure , either with the entry of a lawsuit , since without these the taxpayer does not have the security claims of ownership .
