The Supreme Court of Brazil has ruled on Extraordinary Appeal No. 574.706/PR and the Constitutional Court has defined the theme with wide repercussions: "ICMS does not compose the calculation base for PIS and COFINS incidence" (Find historical details on this item here: https://tdn.totvs.com/x/RkBPJQ).
Important!
Any changes to the calculation base, rates or to various taxation procedures (CST) defined by tax laws, apply only to bookkeeping if the effects of the court ruling have no temporal limitations; thus, the legal action must have passed into res judicata as well as the legal decision must be applicable in relation to the taxable events to which the bookkeeping refers.
To support Protheus Product line customers, we present the following guidelines:
TAX DOCUMENTS
- SYSTEM CONFIGURATIONS FOR FUTURE OPERATIONS:
For the Protheus Backoffice Tax Management product, the configuration of ICMS deduction from the PIS and COFINS calculation base is made when the tax document is issued, following the settings of parameters and routines in the procedure found here: https://centraldeatendimento.totvs.com/hc/pt-br/articles/360020917572-MP-FIS-Valor-de-ICMS-na-Base-de-C%C3%A1lculo-do-PIS-COFINS.
For cases of binding to processes related to the operation, the procedure is found in: //tdn.totvs.com/x/WeEIHw
- SYSTEM ADJUSTMENTS FOR PAST OPERATIONS:
This is a very delicate point that requires careful operationalization. Electronic Invoice directives make it clear that an Electronic Invoice authorized by SEFAZ can no longer be changed (information available here: https://www.nfe.fazenda.gov.br/portal/perguntasFrequentes.aspx?tipoConteudo=7zEQFBPObw0=); starting from this premise, we understand that no change to base, rate or value can be made in the tax document.
Thus, our recommendation is that the invoice be kept intact and that credit claims to tax authorities be made by adjusting the calculation base, directly on the PIS and COFINS calculation, in accordance with the procedure presented in session 16 of the document available here: https://tdn.totvs.com/x/1IqwD
If the taxpayer has a clear procedure from SEFAZ or RFB to correct Payments EFD with the documents adjusted, they must follow it through routine Tax Adjustments (MATA900). Information available here: https://centraldeatendimento.totvs.com/hc/pt-br/articles/360027494872-MP-FIS-Acertos-Fiscais-Rotina-MATA900.
EFD PAYMENTS
- SYSTEM CONFIGURATIONS FOR FUTURE OPERATIONS:
Today the system states the PIS and COFINS base exclusion values in deduction fields, in accordance with the illustration below of specification of field 08 of record C170.
- CORRECTION OF PREVIOUS PERIODS:
Our recommendation is that the invoice be kept intact and that credit claims to tax authorities be made by adjusting the calculation base, directly on the PIS and COFINS calculation, a procedure presented in session 16 of the document available here: https://tdn.totvs.com/x/1IqwD
We clarify that you must execute this process on a month by month basis to meet the tax authorities' directives presented in Payments EFD Practical Guide - Version 1.34: Update on 2/24/2021 and highlighted below:
Attention
In no way, shape or form, shall any adjustments be made for purposes of ICMS exclusion from the PIS/COFINS calculation base with reference to more than one calculation period, in different EFD-Payments of each one of these periods.
For example, if the legal entity proceeds to calculation base adjustments of payments related to the period from March 2017 to May 2021, and has already transmitted the EFD-Payments of these same periods, without the respective ICMS exclusion, it must make the adjustment by correcting each one of the EFD-Payments of the period.
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