The Superior Court of Justice (“STJ”) has decided that it will rule on a repetitive basis (binding by other Courts, except the STF and CARF) whether the Social Security Contribution on Gross Revenue (CPRB) can be excluded from the tax calculation basis for the PIS/COFINS contributions.

The discussion is similar to that decided by the Supreme Federal Court (“STF”) in the judgment of Extraordinary Appeal No. 574,706/PR (Topic 69 of General Repercussion), in which it decided in favor of taxpayers to authorize the non-inclusion of the Tax on the Circulation of Goods and Services (“ICMS”) in the calculation basis for PIS/COFINS (so-called “thesis of the century”). In this case, the discussion involves defining the scope of the calculation basis for PIS/COFINS contributions, cumulative and non-cumulative, provided for in Article 2 of Law 9718/98 and Article 1 of Laws 10.637/2002 and 10.833/2003, considering the legal concept of gross revenue.

Although the current case law of the STJ is contrary to taxpayers, there have been recent changes in composition and others should occur in the 1st Section and 2nd Panel, and that could change the scenario.

In Theme 1111, the STF decided that there is no general repercussion in the discussion on the CPRB in the calculation basis for PIS and COFINS, since it is not a constitutional matter. Thus, in practice, the final word on the subject will be given by the STJ.

In this scenario, we recommend that the taxpayers that opt for the CPRB file a lawsuit to protect their right to exclude it from the PIS/COFINS tax calculation basis in the future, as well as to be able to refund or offset amounts unduly paid in the last 5 years updated by SELIC, especially due to the risk of modulation of the effects of the decision by the STJ, in the event of a favorable decision, which would prevent the recovery of amounts unduly paid to those who file a lawsuit after the date of the judgment by the STJ.