Superior Tribunal de Justiça excludes ICMS-Difal from PIS and COFINS base

The Superior Tribunal de Justiça (STJ) has established a binding precedent regarding the calculation of social contributions. In a unanimous decision, the court ruled that ICMS-Difal—the tax rate differential collected in interstate operations destined for non-contributing final consumers—does not constitute part of the calculation base for PIS and COFINS.

Relator Minister Gurgel de Faria reasoned that ICMS-Difal is not an autonomous tax, but rather a mechanism for distributing ICMS between the states of origin and destination. Consequently, these values do not represent revenue or turnover for the taxpayer, as they do not enter the taxpayer's assets. This follows the logic of the Supreme Federal Court’s “thesis of the century,” which determined that ICMS should be excluded from PIS and COFINS bases.

The decision’s effects have been modulated to begin from March 15, 2017, except for judicial actions and administrative proceedings already in progress as of that date.