The Brazilian Superior Court of Justice (STJ) took an important step by deciding that ICMS-Difal does not form the basis for calculating contributions to PIS and Cofins.
The decision, taken by the First Panel, represents an unprecedented legal milestone and offers new perspectives for companies, especially those that carry out interstate operations.
We highlight the main points of the decision below:
1. Unprecedented decision in the STJ: The case resolves a thesis derived from the “thesis of the century”, in which the STF decided, in 2017, that the ICMS is not part of the PIS and Cofins calculation base.
2. Difal definition: ICMS-Difal is a compensatory tax to balance ICMS rates between states in interstate sales, especially relevant in the context of e-commerce operations.
3. Compensation recognized: The right to compensation for amounts unduly collected was guaranteed, within the statute of limitations.
4. End of appeal limbo: The decision resolves a long-standing controversy between the STJ and Federal Supreme Court (STF), which avoided judging the issue due to its mixed nature — constitutional and infra-constitutional.
This decision by the STJ represents a significant victory for companies that operate in interstate operations, bringing more predictability to the organizations’ tax planning. Furthermore, the time is right to review the amounts collected in recent years and, if applicable, seek compensation for the overpaid amounts.
