Do conceito de insumo para fins de creditamento na sistemática não cumulativa do PIS/PASEP e da COFINS

Abstract

This discourse aims to, through a deep study of the case law, the jurisprudence and the Brazilian legislation, discuss the concept of input used in the relation of crediting on the noncumulative systematic of PIS/PASEP and COFINS. To find the concept of input that we understand as correct, it is done an entire analysis of the history of contributions, from its creation to the present day, pointing their constitutional and legal bases, as well as explaining the Tax Incidence Rule Theory, in all its aspects, including the antecedent and consequent of the tax precept, and its application on the taxes studied. We also talk about the noncumulative systematic, writing about its guidelines and general rules established by the laws 10.637/2002 and 10.833/2003, the nature of the regime, the methods of crediting, the exceptions of some economic activities, as well its main differences to the system used for taxes on consumption, such as ICMS and IPI. Finally, we study the concept of input. The laws 10.637/2002 and 10.833/2003, by establishing the non-cumulative systematic for PIS/PASEP and COFINS, also stipulated new rates to be used in the regime, fixating the amount in 1.65% for PIS/PASEP and 7.6% for COFINS. In this new regime adopted, crediting uses the basis on basis method, by subtracting the costs from the total of revenues, and enforcing the rates on that amount. It happens that the concept of input adopted by the ordinary legislation is too narrow, failing to cover many expenses of the taxpayer. As the calculating basis for the social contributions in discussion is the billing, which includes all revenues earned by the corporation, it is very broad. Thus, it broadens the tax base and limits the use of credits, which generates a substantial increase in the tax burden, undermining many taxpayers. The legislature used the same concepts of input that were already used for other taxes, which have as the calculation basis the trade of products and services, which is much narrower than the one of the PIS/PASEP and COFINS. However, by the very nature of the non-cumulative systematic of social contributions, we concluded that the concept of input should be as broad as possible, including all fees and expenses of the company. Through an analysis of judicial and administrative jurisprudence, we can affirm that already exist some decisions that increase the extension of the concept of input.