Incidência de PIS e Cofins não Cumulativo sobre os Juros Devidos em Repetição de Indébito Tributário Federal

Abstract

In view of the provision about the large amount of credits to be reimbursed arising from the withdrawal of VAT (ICMS) from the taxable base of social contributions (PIS and COFINS), the question arises about the taxation of the interest that will be paid on these tax reimbursements. The Superior Court recently judged the Appel nº 1.138.695/SC, which defined this interest as loss of profits and, therefore, taxable by income tax (IRPJ) and social contribution on net profit (CSLL), however there has not yet been the constitutional analysis by the Supreme Court and not even the specifically definition on the taxation of the others social contributions (PIS and COFINS). In front of the problem caused by the divergence between the financial nature of the indexation by the SELIC Rate (remuneration) and the legal nature of the interest in the reimburse of undue payment (restitution), the hypothesis of non-cumulative incidence of contributions will be analyzed on the academic theses, jurisprudential perspective and the intern rules of IRS to conclude that, although it is evident that the hypothesis of tax incidence arises from the right to be compensate for the arrears (and, therefore, there should not be a tax burden), in practice, the taxpayer will continue to be taxed for the interest received on tax reimburses, until the Supreme Court determine the legal nature of these amounts, definitively consolidating how this update fits into the tax system.

Keywords: Tax law; Tax Reimbursement; Default Interest; Selic Index; Social Contributions