STF decides in favor of the Union in tax judgment of R$115 billion

The plenary of the Federal Supreme Court (STF) decided, by 9 votes to 1, that banks must pay PIS/Cofins on financial income, such as interest, for example. With this, the government avoids a loss of revenue of around R$ 115 billion, according to an estimate by the Federal Revenue Service.

The case was judged in a virtual plenary, a modality in which ministers have a period to register their votes electronically, without in-person deliberation. The judgment session of the appeals on the subject ended at 11:59 pm yesterday (22).

The lawsuits on the subject involved Banco Santander and Sita, an exchange brokerage and other investments. However, the Supreme Court gave the case the status of general repercussion, which means that the final understanding must be applied to all financial institutions in the country, including banks, brokerages and insurance companies, among others.

Since 2014, the legislation has made it clear that the collection of PIS/Cofins on the billing of these institutions also falls on financial income, such as interest and exchange rate appreciation, for example. The banks, however, questioned the incidence of these federal contributions between the years 2009 and 2014, claiming that the law on the subject was not clear about what constituted, in fact, the revenue of these companies.

In the end, the dissenting vote of Minister Dias Toffoli prevailed, which was followed by Edson Fachin, Carmén Lúcia, Gilmar Mendes, Alexandre de Moraes, Luís Roberto Barroso, Nunes Marques, Rosa Weber and André Mendonça. Only the rapporteur, retired minister Ricardo Lewandowski, who sent his vote in December, voted in favor of the banks.

By the winning chain, the thesis was established according to which the “gross operating revenues arising from the typical business activity of financial institutions are part of the PIS/Cofins calculation basis charged in view of those under Law 9.718/1998, even in its original wording, subject to legally prescribed exclusions and deductions”.

The amount of R$ 115 billion calculated by the Federal Revenue refers to the contributions of the last five years, which the government is now authorized to collect from financial institutions. Values ​​prior to this have already had their charge prescribed.

The Brazilian Federation of Banks (Febraban) presented, in the process, the estimate of R$ 12 billion in impact on the cash of financial institutions. The amount is based on ongoing legal disputes, involving 12 banks: Bank of America, BNP Paribas, Bradesco, BTG Pactual, Daycoval, GMAC, Itaú-Unibanco, Mercantil do Brasil and Santander.

Some banks can get rid of the charge, for having joined fiscal recovery programs, according to Febraban. Among them are Banco do Brasil, Citibank and Caixa Econômica Federal. With the outcome of the controversy, which reached the Supreme Court still in 2010, 65 lawsuits that were paralyzed waiting for the thesis of general repercussion on the subject should be resumed.

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