Artigo produzido pelo Leite, Tosto e Barros é destaque na newsletter do ILO

A última edição da newsletter sobre contencioso do ILO (International Law Office), divulgou artigo elaborado por Guilherme Barranco, associado da área Tributária do escritório.

O texto versa sobre a decisão do STF que entendeu que os ganhos de empresas com as variações positivas do câmbio não podem ser tributadas pelo PIS e Cofins.

Confira o texto na íntegra:

 

Supreme Court limits liability for payment of social contribution taxes

The Federal Supreme Court has issued two major tax decisions that could produce significant benefits for Brazilian companies.

In the first case, the court ruled in favour of exporters in a tax dispute with the federal government. In its May 24 2013 decision, the court held unanimously that two taxes – the social contribution to the employees’ integration programme (PIS) and the social contribution on revenues (COFINS) – cannot be charged on revenues from positive earnings on currency exchange rates.

The court considered the purpose of tax immunity on exports, as guaranteed by the Constitution, and observed that the purpose of the rule would be rendered ineffective if the government could tax financial gains realised due to variations in exchange rates.

The court found that exporters’ income resulting from positive changes in rates – for example, when the dollar appreciates against the Brazilian real – is the outcome of selling products abroad. Therefore, these gains are immune from taxation under Article 149 of the Constitution, which prohibits social taxation “on revenues from exports”.

The court rejected a narrow construction of Article 149, holding that it guarantees immunity from taxation not only with respect to the sale of goods to other countries, but also with respect to financial gains in such transactions that result from any fluctuation in exchange rates.

Positive variations in exchange rates are an integral part of export transactions. They arise from the passage of time between the date on which the export contracts are signed and the date on which actual payment is made to the seller in Brazil. For example, a Brazilian company that sells goods in July and receives money from the sale in August or September may realise significant additional income due solely to the dollar or euro appreciating against the real during that time. This was a common phenomenon during 2008 to 2009, when the exchange rate for the dollar went from R1.60 to R2.44. Exporters during that period could have realised substantial additional income entirely as a result of this change in exchange rates.

Such operations had already been excluded from these taxes since 2005, due to a presidential decree, but the decision will prevent a new presidential decree being issued that re-establishes the imposition of PIS and COFINS on such operations. The decision also allows companies to obtain a refund for any amounts paid in the past.

In the second case, the court prohibited the federal government from including the state value added tax, PIS and COFINS in the PIS and COFINS calculation basis for import operations. The court held that the Constitution allows for PIS and COFINS to be charged only on revenues, excluding the taxes charged on import operations. The decision will have a positive effect on the cost of import operations for companies.

Both decisions may have a significant impact on companies’ costs and expenses.

For further information on this topic please contact Guilherme Barranco at Leite Tosto E Barros Advogados Associados by telephone (+55 11 3847 3939), fax (+55 11 3847 3800) or email (guilhermeb@tostoadv.com).

Fonte: newsletter ILO – International Law Office (agosto/2013)

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