TAXATION OF LATE PAYMENT FEES CALCULATED BASED ON THE SELIC INDEX, FOR DEPOSITS AND TAX REFUNDS: THE DIFFERENCE BETWEEN INTEREST AND MONETARY UPDATE AND THE PERIOD OF ZERO PIS/COFINS RATE ON FINANCIAL INVESTMENT INCOME

Abstract

The article addresses the IRPJ, CSLL, PIS and COFINS taxation of the late payment fees for deposits and tax refunds to the taxpayer, when calculated based on the Selic index. To do so, it compares the interpretation of the Federal Tax Authority, which is favorable to taxation, with the dual nature of the Selic index. In this regard, it specifically assesses the legitimacy of the taxation of the mere monetary update, for this is a mechanism aimed simply at neutralizing the detrimental effects of inflation. Based on that, it suggests a partial tool to tax based on the Selic index, through which the inflation accumulated in the period should be deducted. Furthermore, the article focuses on PIS and COFINS in order to demonstrate the illegitimacy of these taxes on late payment fees during the period when the rates of these duties on financial investment income was reduced to zero, by means of art. 27, Law n. 10865/04 and Decree n. 5164/2004.