The Brazilian Supreme Federal Court (STF) confirms that the ICMS (State VAT) should not be included in the taxable basis of PIS and COFINS (Federal VATs)
The STF concluded the long-awaited judgment of the motion for clarification in the process in which it was determined that the ICMS amount informed by the companies in their invoices should not be included in the taxable basis of the PIS and COFINS.
The understanding of the STF allows companies to stop including such amount of ICMS in the PIS and COFINS calculation basis as from 15 March 2017. For companies that did not file a judicial or administrative measure until 15 March 2017, the retroactive recovery of the undue amount is limited until that date.
Brazilian Double Tax Treaties (DTTs) recently ratified
The DTTs signed between Brazil and Singapore, Switzerland, and United Arab Emirates became effective in Brazil, providing reduced withholding tax (WHT) rates for certain cross-border transactions involving interest and royalties.
ICMS (State VAT) rate restrictions on operations with fuels, electrical power, and telecommunications
In November 2021, the STF decided that higher ICMS rates for operations involving electrical power and telecommunications are not in line with the selectivity nature of this tax, as adopted by the State legislators, due to the essentiality of said items in daily life (as observed in Recurso Extraordinário nº 714.139).
Considering the expected financial impact to the Public Treasury of the decision above, the STF decided to modulate the effects of its decision to start only in 2024.
Nevertheless, in March 2022, the Brazilian National Congress presented Bill nº 18/2022, which aimed to change Brazilian federal legislation to consider fuels, electrical power, telecommunications, and public transportation as essential goods and services, imposing restrictions to the Brazilian States concerning the ICMS rates adopted.
Following an expedited procedure in the National Congress, in June 2022, the Bill was approved and converted into Supplementary Law nº 194/2022 with its effects starting as of the date of publication.
As a result of the changes set forth by the federal legislation mentioned above, some Brazilian States have already started to issue tax rules in order to regulate the applicable ICMS rates for these items.