In summary, the Supreme Federal Court (“STF”) granted suspensive effect to an Extraordinary Appeal filed against a decision issued by the Federal Regional Court of the 3rd Region (TRF3) until the appeal is judged by the STF.
In general, insurance companies argue that for the development of their activities they are required by law to set up technical reserves in order to guarantee their solvency. Therefore, such reserves have a legal nature of legal obligation, and are not the result of their business activity, which is insurance contracts. As a consequence, PIS/COFINS should not be levied on financial income arising from their technical reserves. In addition, they also argue that billing, the basis for calculating said contributions, is characterized by revenue from the sale of goods and the provision of services. In this sense, insurance premiums would not be characterized as billing.
Minister Rosa Weber of the STF understood that there is a likelihood of success in the demand, since the STF has already decided that there is a general repercussion of the issue regarding the impact of PIS/COFINS on the financial income of financial institutions (topic 372).
In this context, for those interested in the topic, we advise to file a lawsuit before the STF’s decision on the leading case in order to (i) avoid that in case of modulation, reimbursement is void in the case of lawsuits filed after the final and unappealable decision in the STF; and (ii) seek reimbursement of amounts unduly paid in the last 5 years from the date of filing a lawsuit.
We remain available for clarification.