Opinion No. 7698/2021/ME: Guidelines for Brazilian Federal Revenue Dept. Regarding STF’s Ruling on ICMS Exclusion from PIS/COFINS Calculation Basis

On May 26, 2021, Order PGFN No. 246 was published, approving SEI Opinion No. 7698/2021/ME from the Attorney General's Office of the National Treasury (PGFN), which contains the guidelines for the Brazilian Federal Revenue Department to comply with the Brazilian Supreme Court’s (STF) ruling on the exclusion of ICMS from the PIS and COFINS calculation basis (Theme No. 69 with general repercussion).

The opinion stipulated that the guidelines for collections related to PIS and COFINS, as of March 16, 2017, are applicable to all taxpayers, in light of the unconstitutionality of the inclusion of the detached ICMS in the calculation basis of said contributions.

The opinion also instructs National Treasure members to adopt the guidelines foreseen in response to a STF judgment to review any tax assessment issued, as well as any request of reimbursement of undue taxes paid by taxpayers that were filed before the administrative level.

Furthermore, the opinion included this topic (non-inclusion of the ICMS in the calculation basis of PIS and COFINS contributions) in the list of topics that the National Treasury is not authorized to contest or appeal.

For further information, please contact our Tax team.