Superior Tribunal de Justiça rules ICMS-Difal excluded from PIS and Cofins base

The Superior Tribunal de Justiça (STJ) has ruled that the ICMS rate differential (ICMS-Difal) should not be included in the calculation base for PIS and Cofins contributions. The decision was reached unanimously by the court's 1st Section during the judgment of repetitive resource Theme 1.272.

ICMS-Difal is a tax used to compensate for the difference in ICMS rates when a company in one state sells to a final consumer in another state. The court's reasoning follows the logic of the ‘thesis of the century’ established by the Supremo Tribunal Federal in 2017, which determined that ICMS itself does not compose the calculation base for PIS and Cofins.

Relator Minister Gurgel de Faria noted that the adoption of ICMS-Difal does not change the nature of the ICMS tax incident on the interstate circulation of goods. This ruling extends previous legal precedents, such as Theme 1.125, which held that ICMS tax substitution (ICMS-ST) also does not form part of the PIS and Cofins calculation base.