Os impactos da exclusão do ICMS da base de cálculo dos créditos de PIS/Cofins à luz da jurisprudência do Supremo Tribunal Federal e do desenvolvimento econômico

Abstract

The purpose of this study is to bring to academic debate the issue of the exclusion of the tax on transactions related to the circulation of goods and on interstate, intercity, and communication transport services (ICMS) from the calculation basis of PIS (Social Integration Program) and COFINS (Contribution to Finance Social Security) credits ascertained under the non-cumulative system. The issue in question gained notoriety with the enactment of Provisional Measure No. 1159/2023, when the Federal Government determined, among other things, that taxpayers should exclude the state tax from the calculation basis of the credits calculated for purposes of taxation of such social contributions. In the first topic, we outline a genealogy of the Federal Supreme Court case law on the concepts and notions that make up the constitutional archetype for purposes of determining the tax base of PIS/COFINS. In the second topic, we point out the discussions that unfolded from the judgment of Theme 69 of the general repercussion, when the Supreme Court determined the exclusion of the ICMS from the PIS/COFINS tax base, based on the genealogy pointed out in the first topic. In the third topic, we point out the scope of the non-cumulativeness of PIS/COFINS according to the Superior Court of Justice and the Supreme Court. Finally, in the fourth topic, we verify whether the expedient launched in MP no. 1,159/2023 has constitutional support, based on the Supreme Court’s jurisprudence, and what are the effects of the expedient adopted by the Federal Government on the right to development.