The plenary of the Federal Supreme Court, on March 20, maintained a decision of the Federal Regional Court of the 4th Region which, in 2007, had displeased the possibility of incidence of ICMS on the basis of calculation of PIS and COFINS in import operations . Such a manifestation took place at the time of judgment of the extraordinary appeal nº 559,937 brought by the Union.

The Minister Dias Toffoli vote accompanied the understanding of Minister Ellen Gracie, original rapporteur - now retired -, in denying the Union's appeal. He pointed out that the collection provided for by Law 10,865/2004 Extrapola Article 149 of the Constitution Determine that contributions were calculated not only on customs value, but still on the value of ICMS. Days Toffoli also pointed out that the principle of isonomy can not justify this form of taxation, for failing to meet the limitations imposed by the Constitution. The other ministers, unanimously, accompanied the vote.

In defense of the Union, the Attorney General of the National Treasury argued no constitutional concept of customs value, which can be given by law, and that the incidence of ICMS in import operations respects the principle of isonomy in relation to taxation intern market. Now, PGFN should oppose declaration embargoes, in order to provoke the modulation of the effects of the decision in order to be valued only from now on ( ex nunc ), so that the Union does not to have to restore the values ​​already collected.

As an estimated federal government, this subject involves R $ 33.8 billion in actions that are trampled in other courts. Whereas the Supreme had already recognized the general repercussion of the extraordinary appeal nº 559.937, the processes that were overested will return to normally and its decisions should follow the understanding signed by the STF.

In practical terms, the decision will import into reducing costs of operating companies that are subject to the PIS and Cofins cumulative regime and can not have the collected values ​​credited.

It is important to note that the decision uttered by the STF was on an extraordinary appeal - with a declared general repercussion - and not in direct action of unconstitutionality.

This means that, for companies to be able to benefit from the ICMS on the basis of calculation of PIS and COFINS in import, they should act their own action so that the Judiciary apply the Jurisprudence of the Supreme.