Contribution from banks: Febraban may appeal to the STF – 06/13/2023 – Market

Financial institutions are assessing whether they will appeal the decision of the STF (Federal Supreme Court) that considered the collection of PIS/Cofins on revenues from financial intermediation to be constitutional.

In a note, Febraban (Brazilian Federation of Banks) says that, as soon as the judgment of the decision is published, it will evaluate the next steps, including the possibility of an eventual appeal.

In a statement to the market, Santander reported that it has lawsuits worth an estimated R$4.5 billion. The bank says it will await the publication of the decision to discuss measures and appeals that are still applicable.

“In the understanding of the company, some points were not appreciated in the specific case of the bank because it is a judgment in the general repercussion modality”, says Santander.

The institution also informed that, since the publication of Law 12,973, in 2014, it already pays PIS/Cofins in full.

A survey carried out by Febraban estimates the amount under discussion at R$ 12 billion, based on the December 2022 financial statements of nine institutions (Bank Of America, BNP Paribas, Bradesco, BTG Pactual, Daycoval, GMAC, Itaú-Unibanco, Mercantil do Brazil and Santander).

Of the 15 largest public and private banks, Banco do Brasil, Banrisul, Caixa Econômica Federal, Citibank, Safra and Votorantim, do not have lawsuits on the subject, as they adhered to the so-called “Bank Refis” of 2013, according to the federation.

In the budget law, the federal government estimated an impact of up to R$ 115 billion in case of defeat, as it would have to return the tribute paid in the five years prior to the first actions on the subject, since 2000 in some cases, until the enactment of a law 2014, the year from which the taxes were collected without contestation.

This was the second highest amount involving tax lawsuits in the last instance of the Judiciary.

The STF (Federal Supreme Court) concluded that the two taxes on the financial income of banks in 1999 and 2014 were due, a period marked by changes in legislation that generated this controversy.

The case’s rapporteur, retired minister Ricardo Lewandowski, spoke out against the Union’s claim. For him, the billing concept for charging PIS/Cofins from financial institutions should consider revenue from the sale of products and services, but not financial intermediation.

Minister Dias Toffoli voted in favor of the Union and was accompanied by seven other ministers of the Supreme Court.

In his vote, Toffoli establishes the thesis that “the gross operating revenues resulting from the typical business activity of financial institutions are part of the PIS/Cofins calculation basis charged in view of those under Law No. 9,718/98, even in its original wording, subject legally prescribed exclusions and deductions”.

The STF also considered constitutional the collection of PIS/Cofins on income from insurance premiums, with the position of retired ministers Lewandowski and Marco Aurélio defeated.