Along these lines, with regard to single-phase products, the STJ consolidated the understanding that there is no right to credits on the acquisition of items subject to this system. Likewise, with regard to products subject to the zero rate, the situation is even more unfavorable for crediting, since there is no taxation at any point in the chain.
Thus, items such as cheese, milk, butter and other products exempt from taxation in supermarkets, as well as fruits and vegetables, remain untaxed from the source. Given this, it makes no sense to argue for the existence of PIS and COFINS credits on the resale of these products .
The Duty of Administration
The Public Administration has the legal duty to hong kong telegram data annul its own acts when they are tainted with illegalities, as established in article 53 of Law No. 9,784/1999 : “The administration must annul its own acts, when they are tainted with defects that make them illegal (…).”
Additionally, article 54 of this law establishes a period of five years for the Administration to correct illegal acts that have generated favorable effects for the recipients: “The right of the administration to annul administrative acts that result in favorable effects for the recipients lapses in five years (…).”
The key point here is that, in many situations, the information cross-checking carried out by the Federal Revenue Service occurs automatically. This can lead to cases in which taxpayers receive certain amounts in their account, as has happened in other operations coordinated by the Federal Revenue Service.
The problem arises, however, when the tax authorities act to review these situations, demanding that the company return the amounts received for undue reimbursements, applying a fine of 75% on the amount, according to article 44 of Law No. 9,430/1996 , in addition to interest calculated by the Selic rate. This highlights the risks associated with these operations and reinforces the need for caution on the part of companies.
AMIS Portal – Legal
In this regard, the Minas Gerais Supermarkets Association (AMIS) has warned its members about the risks of this thesis, as per the statement below:
AMIS warns about tax thesis – Legal
To avoid tax assessments and financial losses, it is essential that supermarkets reevaluate their internal procedures if they have been advised by consultancies that offer this thesis, checking whether they are correctly following the rules for appropriating PIS and COFINS credits.
Final Considerations
The misappropriation of PIS and COFINS credits in transactions involving products subject to the single-phase regime or with exempt sales, zero rate or immunity is a practice that contravenes the legal provisions and the consolidated interpretation of the STJ . Companies that adopt this conduct are subject to the risk of prosecution, including fines, interest and the obligation to refund the amounts unduly credited.
Thus, tax compliance is not only a legal obligation, but also an essential measure for the sustainability and reputation of companies.
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