After the great victory of the taxpayer in the Federal Supreme Court (STF), which decided to exclude ICMS from the calculation basis of PIS and COFINS contributions, there is only now the judgment of RE 592616, where will be discussed the unconstitutionality of inclusion of ISSQN in the calculation basis of the PIS/Cofins contributions, with general repercussions.
The arguments used to exclude ISS are basically the same as ICMS. Another point in favor of the taxpayer is that the rapporteur of RE 592616 is the minister Celso de Mello, who favored the taxpayers in RE 574706 which determined that the inclusion of ICMS in the aforementioned bases was unconstitutional.
Although the Superior Court of Justice (STJ) has ruled unfavorably to the taxpayer in REsp 1330737 / SP (Repetitive Appeal of Controversy) arguing that the value of ISS is part of the concept of gross revenue, there are strong arguments to support the reversal of this position by the High Court.
Min. Celso de Mello has taken a side in RE 592.616-RG / RS, in order to recognize the similarity between this judgment and the RE 574706. He understood that the ADC 18/DF that discussed the maintenance of the ICMS in the same calculation basis, has a connection in terms of matter.
The ADC nº 18 / DF discusses precisely the constitutionality of the legal provision that indirectly determines the inclusion of ICMS in the PIS/Cofins calculation basis. Although this ADC has not been judged together with RE 574706, there has been found a prejudice nexus between ADC 18 and RE 592616, which serves as a precedent for taxpayers wishing to recover the claims.