STJ ICMS extended insurance exclusion from the calculation basis

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1 Dear Readers: The purpose of this Tax Bulletin has as its objective to keep our clients and other interested parties duly up-to-date on the main subjects being discussed and decided by the Judiciary, Legislative, and Executive. In this st issue, we are dealing with 17 different questions among Jurisprudence, Legislation and Consultation Solutions. To access each of the texts individually, click: Jurisprudence STF Acknowledged General Repercussion Tributary Immunity ICMS electric energy STJ ICMS extended insurance exclusion from the calculation basis STJ IPI - no incidence on the importation of vehicles by natural persons, for their own use TRF1 FUNRURAL no incidence on the commerce of rural production, of the natural persons rural employer Consultation Legislation and Solutions Decree number 8.392/2015 Increase of the IO/Credit Credit operations natural persons Normative Instruction number 1.544/2015 PIS/COFINS owed by financial and insurance institutions Normative Instructions number 1.545/2015 IRPF Annual Correction Declaration Normative Instruction number 1.547/2015 Exportation transference prices. Normative instruction number 1.548/2015 Natural Persons Register Consultation Solution number 1/ COSIT IRPF/IRPJ Party Fees Consultation Solution number 9/ COSIT Simple Exclusion Employer social security contribution on the 13th wage Consultation Solution number 14/ COSIT PIS/COFINS Reduction to zero of the aliquots incident on the revenues of the sale of products classified under the codes Ex 02, 22.01, 22.02, exception for Ex 01 and Ex 02 of the code , and from the TIPI, by wholesalers and retailers by cumulative and non-cumulative regimes

2 Consultation Solution number 353/ COSIT Meal allowance pecunia Social Security Contributions and IRRF Consultation Solution number 362/ COSIT Social Security Contribution on the Gross Revenue (CPRB) sale of imported equipments by the consortium leader to the consortium Consultation Solution number 378/2014 COSIT - IRPJ e CSLL deduction from the IPI, PIS/COFINS. Consultation Solution number 384/2014 COSIT Compensation and Social Security Contribution on the Gross Revenue (CPRB) Consultation Solution number 7.042/2014 DISIT/SRRF07 Investments Fund waiver from the IRRF retention

3 Souza, Schneider, Pugliese e Sztokfisz Advogados law firm is available to its clients should they have any questions on the decisions commented on in this newsletter. Enjoy your reading.

4 Jurisprudence STF Acknowledged General Repercussion Tributary Immunity ICMS electric energy In 02/05/2015, the Federal Supreme Court (STF) issued a judgement where it recognizes the existence of a General Repercussion in a discussion related to the range of the tributary immunity settled in the article 155, 2º, item X, point b of the Federal Constitution to an intermediate that purchases electric energy and sells it to final consumers in the same state. The referred constitutional issue will be assessed within the Extraordinary Resort (RE) /RS, under Minister Marco Aurélio s rapporteurship. STJ ICMS extended insurance exclusion from the calculation basis In 02/10/2015, while judging the REsp /MG, the First Panel of the Superior Court of Justice (STJ), unanimously understood that the value paid as an extended insurance does not integrate the ICMS calculation basis. For the Rapporteur Minister, Benedito Gonçalves, the ICMS must cover values that effectively compose the sale price, which is not the case of the extended warranty, totally charged from the insurers. Thus, it does not represent a presumption for the performance of the sale, accordingly to what has been recognized in the Resolutions number 122/05 and 296/2013 from the CNPS (Private Insurers National Council), where it is prohibited to constrain the sale of a merchandise to the hiring of an insurance. STJ IPI - no incidence on the importation of vehicles by natural persons, for their own use In 02/25/2015, the First Section of the Superior Court of Justice (STJ), while judging the REsp / SC, with the majority of votes, decided against charging the Tax for Industrialized Products (IPI) in the importation of a vehicle by natural persons for their own use. Accordingly to the Rapporteur of the case, Minister Humberto Martins, the referred operation in the importing of a vehicle, performed by natural persons and intended for personal use, does not constitute a merchandise nature. Thus, IPI could not be charged under such situations. Albeit being favourable to taxpayers, the decision is still waiting judgement in the Federal Supreme Court (STF), under the condition of general repercussion, of the Extraordinary Resort number /RG, through which the final decision on the constitutionality of this tributary requirement will be given. TRF1 FUNRURAL No incidence on the commerce of rural production, of the natural persons rural employer In 02/13/2015, the Eighth Panel of the Federal Regional Court of the 1st Region (TRF1) unanimously decided against charging the social contribution to the Rural Worker Assistance Fund (FUNRURAL), owed by the natural person rural employer, on the commerce of rural products. That s because it considered unconstitutional the calculation basis of the referred contribution settled in the Law /2001, making the 03

5 charge invalid. On this issue, the First Panel of the Superior Court of Justice (STJ), while judging the Special Resort number /SC, settled an orientation towards the unconstitutionality of the 1st Article of the Law /2001, so that prevails the definitive extinction of the contribution to the FUNRURAL, since its extinction, because it might have been practiced the same defects present in the 1st Article of the Law number 8.540/1992, declared unconstitutional by the Federal Supreme Court (STF) during the judgement of the Extraordinary Resort number /RS 1. Beyond that, the Federal Supreme Court (STF) affected as a General Repercussion the Extraordinary Resort number /RS in order to exactly assess the validity of the referred social contribution. In that way, there will be a greater legal safety for the natural person rural employer not to pay the social contribution on the commercial value of rural products and will allow restitution requirement or the compensation of unproperly paid values. Consultation Legislation and Solutions Decree number 8.392/2015 Increase of the IO/Credit Credit operations natural persons In 01/21/2015, it was issued the Decree number 8.392/2015, that changed the Decree number 6.306/2007 in order to top up the aliquots of the Tax for Credit Operations ( IO/Credit ) charged on non-residential real estate properties mutual and financing operations hired by natural persons. The new decree increased from 0,0041% to 0,0082% the aliquots of the referred credit operations. The new aliquots are in force since the day 01/22/2015. Normative Instruction number 1.544/2015 PIS and COFINS owed by financial and insurance institutions In 01/27/2015, it was issued the Normative Instruction ( IN ) number 1.544, from 01/26/2015, that changed the IN number 1.285, from 08/13/2012, in order to adequate the Law number /2014, the PIS and COFINS infralegal legislation owed by commercial banks, investment banks, development banks, economic funds, real estate credit, financing and investment societies, brokering societies, securities distributors, leasing companies, credit unions, private insurance and capitalization companies, independent agents of private insurance and credit and open and closed private pension funds. Among the changes, we highlight the expressed determination where the gross revenue concept for the verification of the calculation basis of these contributions must be the same expressed in the Article 12 of the Decree-Law number 1.598/ In that opportunity, STF declared the Article 1st of the Law number 8.540/1992 unconstitutional, because (i) the instrument created a new incidence hypothesis for social contribution that is not settled by the Federal Constitution; (ii) natural person rural employers would be subjected to a double taxation paying COFINS and the social contribution instituted by the referred Law; (iii) the norms on the payment of Social Security could only be created through a complementary law. 04

6 Beyond that, it has been changed the series of values deductible from the calculation basis of canvas contributions, enabling the deduction of profits and dividends derived from partnership participations that have been registered as gross revenue and the revenues derived from the sale of noncurrent asset goods, classified as investment, be it a fixed or intangible asset, accordingly to the item IV, article 187, from the Law number 6.404/76. Another novelty is the possibility to exclude from the calculation basis of the canvas contributions charged on the revenue derived from the sale of corporate participations the value expended with the purchase of those participations, as soon as the revenue derived from the sale has not been excluded from the calculation basis of the contributions mentioned above. Finally, among highlighted changes, legal entities subjected to the regime of this IN were enabled to deduct from the PIS and COFINS calculation basis (i) the losses with financial assets and merchandises in hedge operations; (ii) the capitation expenses in operations performed in the interfinancial market, including with public funds; and (iii) the value of remuneration and taxes, even if they are counted in the net patrimony, referring to capital instruments or subordinated debt, issued by the legal entity, exception for the form of shares. Normative Instructions number 1.545/2015 IRPF Annual Correction Declaration In 02/04/2015, it was issued the Brazilian Federal Tax Office Normative Instruction number ( IN number 1.545/2015), through which were settled the norms and procedures for the presentation of the Annual Correction Declaration of the Natural Person Revenue Tax ( DIRPF ) referring to 2015 s term, calendar-year Among the provisions settled through the referred norm, we highlight the mandatory presentation of the DIRPF by natural persons living in Brazil that, in the year of 2014, received taxable revenues whose sum was superior to R$ ,55 or non-taxable revenues or taxed only at the source superior to R$ ,00. Must also declare those that, at any month, (i) calculated a capital gain through the sale of goods or rights subjected to the taxation; (ii) performed market share, merchandise and future operations; and (iii) had gains or have rural assets or properties within the values settled by the Brazilian Federal Tax Office. DIRPF must be handled within the period from 03/02/2015 to 04/30/2015, through the use of the Declaration Generating Program ( PGD ), of the service Declaration IRPF 2015 on-line available in the Service Virtual Centre ( e-cac ), through the use of a virtual certificate or through the service Make a Declaration through mobile phone application APP IRPF. Normative Instruction number 1.547/2015 Exportation transference prices. In 02/13/2015, it was issued the Normative Instruction RFB number 1.547, which settled rules for the attestation of exportation transference prices for the calendar-year of It remained settled that the exportation sales revenue earned in reais in the calendar years of 2014, 2013 and 2012, in the operations with bounded people, must be multiplied by the factor of 1,00 (one integer), for the calculation of the triennial pondered arithmetic average of the net profit settled in the Article 48 of the Normative Instruction RFB number 1.312/

7 Differently, the legal entities whose exportation net revenue for non-bounded people does not surpass 20% of the total exportation net revenue, may calculate a 10% minimum annual net profit through the multiplication of sale revenues for bounded companies by the factor of 1,00 (one integer), taking into account exclusively the calendar-year of Normative instruction number 1.548/2015 Natural Persons Register In 02/13/2015, it was issued the Normative Instruction number ( IN ), settled by the Brazilian Federal Tax Office ( RFB ), which decided upon the procedures related to the Natural Persons Register ( CPF ). Among the settled rules, we highlight the mandatory register of CPF to natural persons that (i) live in Brazil and are part of the liability hub tributary relationship or (ii) live in Brazil or outside of the country and: a) perform real estate operations; b) have bank accounts; c) deal with the financial or capital market in Brazil; d) have assets and rights subjected to a public registration or specific register; e) with 16 years of age are still considered dependant in the Annual Correction Declaration of the Natural Person Revenue Tax ( DIRPF ); f) are registered in a civil register office of Brazilian natural persons; and g) are considered insurers within the Social Security or applicants to the benefits of the Social Security National Institute (INSS). The referred Normative Instruction also determined the documents necessary for the enrolment and the places for requirement, that may be either the Bank of Brazil and National Post Service, Federal Economic Fund and Partner Public Entities, like the RFB Service Branches themselves. Beyond that, the mentioned IN decides upon the cancelling of the CPF enrolment requirement, which will only happen through the finding, by the natural person herself, of a multiplicity of enrolments or in case of death. Yet, the referred enrolment will be cancelled ex officio in the hypothesis of an administrative decision or legal determination. Finally, accordingly to the IN, we understand as a register situation: (i) regular, when there are no enrolment inconsistencies and there are no DIRPF omissions; (ii) regularization pending, when there is a DIRPF omission; (iii) suspended, when there is an enrolment inconsistency; (iv) cancelled due to multiplicity, when there is more than just one enrolment in the CPF for the same person; and (vii) null, when a fraud is noticed. Consultation Solution number 1/ COSIT IRPF/IRPJ Party Fees In 02/20/2015, it was issued the Consultation Solution number 1, where COSIT embodied the understanding on the incidence of Revenue Taxes on the values received by lawyers (physical persons) or law services firms (legal entities) related to party fees. The taxpayer that formulated the consultation supposed that the party fees paid to law firms did not derive from the provision of services and, thus, would be excluded from the retention at source hypothesis of the article 647 from the Revenue Tax Regulation ( RIR ). Yet, mentioning precedents from the Superior Court of Justice, the tax authority manifests a different 06

8 comprehension, in the sense that party fees constitute revenues from unwaged labour, thus subjecting it to the retention of taxes at the source. Right from the beginning, natural person lawyers would be subjected to the retention of revenue tax while law firms, beyond the retention of revenue taxes, would also be subjected to the CSLL retention, a contribution to the PIS and COFINS. Consultation Solution number 9/ COSIT Simple Exclusion Employer social security contribution on the 13th wage In 02/04/2015, it was issued the Consultation Solution number 9, through which the General Taxation Coordination ( COSIT ) clarified how a company excluded from the Simple Nacional program must calculate the Employer Social Security Contribution ( CPP ) on values paid as 13th wage. The Consultation Solution analyses the case of a company that, as a consequence of earning a gross revenue superior to the limit that fits within the simplified taxation, has been excluded from Simples throughout the calendar year. Companies that chose for Simples are subjected to the unified collection of several taxes, among which is the CPP. In case the tax payer is excluded from the simplified regime, he must start to perform the CPP collection based on his payroll and not anymore based on the gross revenue. Although the legislation that disciplines Simples is not expressed when it comes to the CPP calculation on the 13th wage for the occurrence of the situation in issue (the exclusion from Simples on the legal entity throughout the year), the Consultation Solution adopts the understanding that, in this case, it must be applied the analogy with the Social Contribution on Gross Revenue legislation. For this reason, CPP starts being calculated on the 13th wage in a proportional way when it comes to the months the taxpayer has been subjected to the CPP payment based on the payroll. Consultation Solution number 14/ COSIT PIS/COFINS Reduction to zero of the aliquots incident on the revenues of the sale of products classified under the codes Ex 02, 22.01, 22.02, exception for Ex 01 and Ex 02 of the code , and from the TIPI, by wholesalers and retailers by cumulative and non-cumulative regimes In 02/19/2015, it was issued the Consultation Solution COSIT number 14/2015, fulfilling questions transmitted by a taxpayer when it comes to the interpretation of the instrument present in the article 58-B of the Law number /2003. The mentioned instrument reduced to zero the aliquots of the Contribution to the Social Integration Program ( PIS Contribution ) and of the Contribution for the Financing of the Social Security ( COFINS ) charges in the revenues derived from the sale of products mentioned in the article 58-A of the same Law that is the products classified in the codes Ex 02, 22.01, 22.02, except the Ex 01 and Ex 02 of the code , and 22.03, of TIPI (that, in summarized way, are referred to the preparation of soft drinks and waters). The Consultation Solution clarifies that, although the Law number /03 is more noted for its dispositions when it comes to the non-cumulative modality of the mentioned contributions, it does not serve only to it, but also to dealing with the taxable issue in a general way so that the non-cumulative regime is the 07

9 priority only for the first chapter of the mentioned legal diploma. This impression may generate false cognitions when it comes to the Law text as a whole. Taking that into account, it must be observed that it doesn t exist in the article 58-B s instrument any determination of the application of that rule exclusively to taxpayers subjected to the non-cumulative modality, neither a prohibition of its applications by taxpayers under the cumulative modality. In that way, the zero aliquot on the above mentioned revenues equally applies to both calculation regimes. Finally, it is provided a reservation that there are exceptions for the application of the reduced aliquot. Specifically, it doesn t submit this rule to the revenues derived from sales to final consumers performed by the importer or manufacturer of the product. It is worth to mention that the Solution diverges from the other exception, present in the item II, single paragraph, of the article 58-B, in comment, when it comes to taxpayers of the Simples Nacional program, because they understand that this item of the instrument has been revoked by a previous legislation. Consultation Solution number 353/ COSIT Meal allowance pecunia Social Security Contributions and IRRF In 12/17/2014, it was issued the Consultation Solution COSIT number 353/2014, that settled the charge of Social Security Contributions on behalf of the employer and employee and the IRRF on cash payments (pecunia) of meal allowance during worked holidays settled in a Collective Convention. Accordingly to COSIT s comprehension, a meal allowance paid in cash has a wage nature and integrates the calculation basis of Social Security Contributions, because the law doesn t exclude from the taxable basis of such contributions the payment in cash. Beyond that, accordingly to Tax Authorities, the Collective Convention also could not perform such exclusion. Thus, only the payment in natura of the allowance would not integrate the salary and, thus, would not be subjected to the charge of the referred Contributions. When it comes to IRRF, COSIT understood that, once a cash meal allowance configures a taxable patrimonial addition and the tax legislation does not excludes the charge of IRRF on this amount, the values paid must be taxed at source accordingly to the articles 620 and 624 of RIR/1999. Consultation Solution number 362/ COSIT Social Security Contribution on the Gross Revenue (CPRB) sale of imported equipments by the consortium leader to the consortium In 12/17/2014, it was issued the Consultation Solution COSIT number 362/2014, that deals with the charge of CPRB on values received by a leading company of a consortium that fits in the Article 7th, VII, of the Law number /2011 due to the sale of an imported equipment to the consortium it leads. In the case, the consultant, the consortium leading company, performed a direct importation, followed by the exit of products from its facility to the consortium and informed that it performs the importation of the equipments under its own behalf and that the consortium reimburses it. RFB, while analysing the consultation, understood that the sale or transference of the imported good must not be confused with the operation performed by the consortium, and the sale or transference incomes have the nature of revenues, thus taxable by CPRB. Thus, COSIT understood that the incomes earned by 08

10 the leading company are a revenue derived from the sale of goods in the operations of their account and cannot be classified as reimbursement. Consultation Solution number 378/2014 COSIT - IRPJ e CSLL deduction from the IPI, PIS and CO- FINS. In 12/22/2014, it was issued the Consultation Solution number 378 where the General Coordination of the Taxation System ( COSIT ) embodied the understanding for the deduction of the calculation basis of IRPJ and CSLL, of values paid untimely as IPI, Contribution to PIS and COFINS. Accordingly to COSIT, the IPI, once it is separately detached from the tax invoice and calculated outside, does not constitutes the gross revenue of the legal entity and, thus, cannot be deducted from it. For the tax organ, the legal entity would be a simple depositary of the IPI value, directly charged from the client. The Contribution to PIS and COFINS, from its side, are included in the price and can be considered as reducers of the gross revenue. Yet, the referred deduction must respect the competence regime, that is, it must be accounted in accordance to the time of the facts and offered the respective revenue, through the recalculation of previous terms. Consultation Solution number 384/2014 COSIT Compensation and Social Security Contribution on the Gross Revenue (CPRB) In 01/05/2015, it was issued the Consultation Solution number 384/2014, where Tax Authorities consigned the viability of credit compensation of the Social Security Compensation calculated on the payroll, derived from undue payment or from the biggest of it, with debts of the Social Contribution on that Gross Revenue (CPRB), as well as the compensation possibility of this with that one. The solution fundaments highlight that the CPRB compensation is limited to the compensation of credits with social security taxes, settled in the articles 89 of the Law number 8.212/91 and 26 of the Law number /09. RFB clarifies even that the CPRB credit compensation must be made in a specific electronic form called CPRB Debt Compensation and available in its electronic address. Consultation Solution number 7.042/2014 DISIT/SRRF07 Investments Fund waiver from the IRRF retention In 12/11/2014, it was issued the Consultation Solution number 7.042/2014, through which the Taxation Division of the Brazilian Federal Tax Office Regional Superintendence of the 7th Tax Region clarified that the investment funds, once they are constituted under the form of a condominium, do not characterize themselves as legal entities, and, as a consequence, are exempt from the retention of the IRRF charged on the amounts paid or credited to legal entities due to the provision of professional nature services, settled in the article 647 of the Revenue Tax Regulation. 09

11 Team responsible for preparing the Tax Bulletin: Igor Nascimento de Souza Henrique Philip Schneider Eduardo Pugliese Pincelli Cassio Sztokfisz Fernanda Donnabella Camano de Souza Diogo de Andrade Figueiredo Flávio Eduardo Carvalho Vitor Martins Flores Rafael Fukuji Watanabe Laura Benini Candido Rodrigo Tosto Lascala Pedro Lucas Alves Brito Maria Carolina Maldonado Mendonça Kraljevic Viviane Faulhaber Dutra Flavia Gehlen Frosi Marina Lee Thomas Ampessan Lemos da Silva Gabriela Barroso Gonzaga Ferreira Porto Ana Cristina de Paulo Assunção Sérgio Grama Lima Pedro Paulo Bresciani Gabriela Xavier Urbani Pedro Guilherme Ferreira Bini Roberta Marques de Moraes Tatiana Ergang Barros 10