A exclusão do ICMS da base de cálculo do PIS e da COFINS

Abstract

The aim of this study is to analyze the legitimacy of the insertion of ICMS value, detailed in fiscal note, on the value the calculating base of the PIS contribution and COFINS. In order to prove that, it's necessary to make a discussion involving different doctrinaire and jurisprudence positions, which brings the fundament for this propose. Another important point to be discussing is the exact semantic reach of the revenue and earnings, because they're really fundamental to elucidate this idea. Throughout the work, it's made an analyze of thr tributary classification, which divides tributes in direct and indirect, in order to elucidate which is the real own of the ICMS value, the State or the companeis explaining, in consequence, the ralation between the 'in fact' and 'in right' contributing, and among these and State. Although that classification is not admitting for some doctrines, some superior tribunals accept it for jurisprudential effects. The perspective attributing to this work expects investigate, which the beste possible clarity, basing in the constitution and its modifiers, besides the legislative and jurisprudential evolution about the theme, on relation involving extreme taxation between the State and the contributing, emphasizing the principle of the contributing capacity. This work analyzes the companies thate direct the ICMS value paid by the 'in fact' contributing, and their relation ruled by the private right. Finally, it gives a conclusion about the theme, and about the exclusion of ICMS value from the earnings definition to PIS and COFINS contributions.