The non-cumulative regime of PIS and COFINS is provided for in Law no. 10.637 / 2002 and 10,833 / 2003 and provides for credit discount system on certain goods and services purchased by companies, which are essential so that they can develop their end-to-end. In other words, the costs and expenses needed for the performance of economic activity authorize the crediting of PIS and COFINS contributions.

It occurs that the Federal Revenue from Brazil (RFB) has a restrictive interpretation in relation to the possibility of using credit to PIS and COFINS contribution. The normative instructions of the Federal Revenue Secretariat n. 247/2002 and 404/2004 restrict and mitigate the right to use credit on the expenses that form the revenue, making it impossible for the generation of contributions, representing an illegality by transgressing the dictates provided for in Laws 10.637 / 02 and n. 10.833 / 03. RFB has used industrialized product legislation (IPI) to determine the concept of input, whose content is more restrictive in terms of credit possibilities.

However, the Ministers of the First Section of the Superior Court of Justice (STJ), in the judgment of the special appeal n. 1,221.170 / PR, judged under the systematics of repetitive resources, understood that: (a) is illegal the credit discipline provided in the Normative instructions of SRF < / Strong> NS. 247/2002 and 404/2004 , because it compromises the effectiveness of the non-cumulative system of PIS and COFINS contribution, as defined in laws 10.637 / 2002 and 10,833 / 2003; and (b) The concept of input should be measured in the light of the essentiality or relevance , that is, considering Prenscindibility or importance from well or service for development activity economy performed by the taxpayer.

The Attorney General for the National Farm (PGFN), through Explanatory Note n. 63/2018. Which means that from now on, PGFN should take into account the particularities of the main activity of the contributor to determine whether or not the good or relevant element for the realization of economic activity In order to authorize the crediting of those contributions.

Faced with this new scenario, we understand that a good opportunity for companies to review the criteria previously used for PIS and COFINS credit for goods and services applied in their activities in order to reduce the collection of those Taxes.

For that, we have already placed ourselves to the entire disposition for the clarifications that are necessary, as well as to analyze the feasibility of appropriation of PIS and COFINS credits in the administrative or judicial level.