Análise do acórdão do RE 574.706/PR: discussões em aberto, efeitos e impactos da decisão que excluiu o ICMS da base de cálculo do PIS e da COFINS

Abstract

The main objective of this work is to identify the reasons explained in the judgment of Extraordinary Appeal 574.706 / PR (Theme 69), which led the Supreme Court to define that ICMS does not compose the PIS and COFINS calculation basis, in order to verify the possible effects and repercussions of the thesis. In view of this, it is imperative to carry out a study of the doctrine specialized in the subject, as well as of the historical evolution of the legislation and of the Court's jurisprudential understanding. Indeed, it was noticed that, in the midst of a deep debate, the core of the STF's discussion orbited around the constitutional concept of billing. Under the terms of the winning votes, it was possible to conclude that the ICMS would represent a mere cash inflow, since it must be transferred to the Public Treasury, not being integrated into the taxpayer's equity as a new element in order to configure billing. In fact, although the statement made by the Supreme Court was clear, the consequences and, mainly, the conditions for the realization of this right remains the subject of deep debates. In this sense, the reasons for the Declaratory Embargoes filed by the National Treasury against the judgment were analyzed. Thus, it was concluded that, in light of the STF's jurisprudence, the request for temporal modulation of the effects should be dismissed. In addition, the discussion about which ICMS should be excluded from the PIS and COFINS calculation basis, which is the detailed or the collected, was addressed. With regard to this issue, it is believed that, based on the decisions of the Brazilian Courts, the ICMS to be excluded should be the one highlighted, even so, it is emphasized the possibility of the STF not appreciating the issue because it is an infra-constitutional matter. With that being said, it appears that the judgment represents a great victory for taxpayers, on the other hand, announces an extraordinary reflection in the national tax system and a worrying financial-budgetary impact on federal public treasury.