The Federal Revenue published new rules on PIS and Cofins credits and one of them allows ICMS to be accounted for in the calculation of credits that are generated with the acquisition of goods and inputs.
Normative Instruction No. 2.121 published in the Federal Official Gazette on 20/12/2022, revokes Normative Instruction No. 1.911/2019, which regulated the calculation, collection, inspection, collection and administration of the Contribution to PIS/Pasep, from Cofins - Contribution to Financing Social Security, Contribution to PIS/Pasep-Import and Cofins-Import.
Normative Instruction No. 2.121 consolidates these standards and containing 811 articles, revoked:
·
Normative Instruction RFB No. 955, of July 9, 2009;
·
Normative Instruction RFB No. 1.267, of April 27, 2012;
·
Normative Instruction RFB No. 1.911, of October 11, 2019;
·
RFB Normative Instruction No. 2.092, of July 6, 2022; and
·
Normative Instruction RFB No. 2.109, of October 4, 2022.
Normative Instruction No. 2.121 defines the procedures to be adopted in relation to the treatment of ICMS in the PIS and Cofins calculation bases, thus bringing security to the taxpayer as to the operational procedure to be adopted.
This is a point that brings predictability, also because when it comes to calculating credits, for example, the Revenue and the PGFN - Attorney General of the National Treasury had different understandings. Revenue defended the exclusion of ICMS and PGFN did not. Another party benefited by the norm are the exporters, who now have the right to buy raw materials with the suspension of PIS and Cofins. However, in addition to the advances, the standard also brings critical points, such as the right to PIS and Cofins credits paid on purchases of merchandise for resale, which previously existed and have now been extinguished.
Some highlights of IN 2121/2022:
1 – Exclusion of ICMS from the PIS and Cofins Calculation Basis
CALCULATION BASE EXCLUSIONS
Section I
General Exclusions
Art. 26. For purposes of determining the Contribution to PIS/Pasep and Cofins, the calculation base referred to in art. 25, values referring to (Decree-Law No. 1.598, of 1977, Art. 12, as amended by Law No. 12.973, of 2014, Art. 2; Law No. 9.718, of 1998, Art. 3, caput, as amended by Law No. 12.973, of 2014, Article 42, and § 2, as amended by Law No. 13.043, of November 13, 2014, Article 15; Law No. 10.637, of 2002, Article 1, § 3, as amended by Law No. 12.973, of 2014, Article 16; Law No. 10.833, of 2003, Article 1, § 3, as amended by Law No. 12.973, of 2014, Article 17; and Article 15 , item I, as amended by Law No. 10.865, of 2004, Article 21; and Judgment on Motion for Clarification in Extraordinary Appeal No. 574.706):
XII - ICMS highlighted in the tax document
Single paragraph. Regarding the exclusion referred to in item XII, the ICMS amounts highlighted in tax documents referring to revenues from sales made with suspension, exemption, zero rate or not subject to the levy of contributions cannot be excluded.
2 - Calculation of Credits
Credits Arising from the Acquisition of Goods for Resale
Art. 173. The basis for calculating the credits to be deducted from the Contribution to PIS/Pasep and Cofins in the non-cumulative calculation regime, the values of acquisitions made in the month of goods for resale (Law No. 10.637, of 2002, art. 3 , caput, item I, “a” and “b”, as amended by Law No. 11.787, of 2008, article 4; and Law No. 10.833, of 2003, article 3, caput, item I, as amended by Law No. 11.787 of 2008, Article 5).
Single paragraph. Credits related to goods acquired for resale that have been stolen or stolen, rendered useless or deteriorated, destroyed in an accident, or even used in other products that have had the same destination must be reversed (Law No. 10.833, of 2003, art. 3 , § 13, as amended by Law No. 10.865 of 2004, Article 21, and Article 15, item II, as amended by Law No. 11.051, of 2004, Article 26).
Art. 174. For the purpose of calculating the credits arising from the acquisition of goods for resale, the acquisition value, the insurance and freight paid in the acquisition when supported by the buyer (Law No. 10.637, of 2002, art. 3, caput, item I, as amended by Law No. 11.787, of 2008, article 4, and Law No. 10.833, of 2003, article 3, caput, item I, as amended by Law No. 11.787, article 5).
Subsection II
Credits Arising from the Acquisition of Inputs
Art. 175. The basis for calculating the credits to be deducted from the Contribution to PIS/Pasep and Cofins, in the non-cumulative calculation regime, are the values of acquisitions made in the month of (Law No. 10.637, of 2002, art. , item II, as amended by Law No. 3, of 10.865, article 2004; and Law No. 37, of 10.833, article 2003, caput, item II, as amended by Law No. 3, of 10.865, article 2004 ):
I – goods and services used as an input in the production or manufacture of goods or products intended for sale; and
II – goods and services used as an input in the provision of services.
§ 1 The goods referred to in the caput include fuels and lubricants, even those consumed in the production of steam and in electric energy generators used in the activities of production or manufacture of goods or provision of services (Law No. 10.637, article 2002, item II, as amended by Law No. 3, of 10.865, article 2004; and Law No. 37, of 10.833, article 2003, item II, as amended by Law No. 3, of 10.865, art. 2004).
§ 2 The fuels and lubricants referred to in § 1 do not include those used in activities of the legal entity other than the production or manufacture of goods or the provision of services.
§ 3 Except for the provisions of item II of the caput, the payment referred to in item I of art. 421, owed to the dealer by the manufacturer or importer due to the intermediation or delivery of vehicles classified in positions 87.03 and 87.04 of the Tipi (Law no. , article 10.637; and Law nº 2002, of 3, article 10.865, item II, with wording given by Law nº 2004, of 37, article 10.833).
§ 4 The credits relating to goods used as an input in the provision of services and in the production or manufacture of goods or products intended for sale and which have been stolen or stolen, rendered useless or deteriorated, destroyed in an accident, or even used in other products that have had the same destination (Law no. 10.833, of 2003, art. 3, § 13, with wording given by Law no. 10.865, of 2004, art. 21, and art. 15, item II, with wording given by Law nº 11.051, of 2004, article 26).
Access Normative Instruction nº 2.121/2022 in its entirety, on the RFB website:
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