A inconstitucionalidade da manutenção do ICMS-ST na base de cálculo do PIS e da Cofins: o julgamento e a modulação de efeitos do Tema nº 1.125 do STJ

Abstract

The judgment of Theme 69/STF, known as the "case of the century," determined that ICMS should be excluded from the calculation base of PIS and Cofins due to its incompatibility with the non-cumulative principle. However, the decision did not address the exclusion of ICMS-ST from the calculation base of the same taxes, which led to several demands from taxpayers seeking to extend this understanding to the tax substitution regime. In this regard, the STF recognized the absence of a general repercussion on the matter and established that the controversy regarding the inclusion of ICMS-ST in the calculation base of PIS and Cofins is infraconstitutional. Consequently, the issue will be judged by the STJ under the repetitive appeals procedure, within Theme no. 1,125. It is worth noting that the tax substitution regime is a technique in which the taxpayer is responsible for the prepayment of the tax or contribution, ensuring immediate restitution if the presumed taxable event does not occur. Thus, ICMS-ST is a technique used to facilitate the control of collections, where the substitute taxpayer collects in advance the presumed ICMS based on the product's added value margin, in addition to the ICMS due on the sale of the goods. However, like regular ICMS, ICMS-ST does not represent revenue or turnover but rather an incidental burden on the sale or resale of goods to the final consumer. Therefore, the inclusion of ICMS/ST values in the calculation base of PIS and Cofins violates the concept of turnover, the constitutional text, and the positions of the STF in the judgment of Theme no. 69. This monograph aims to demonstrate the need to apply the principle of equality to extend the STF's understanding regarding the exclusion of ICMS from the calculation base of PIS/Cofins to ICMS-ST as well, within the tax substitution regime