A controvertida relação entre as receitas financeiras e a base de cálculo do PIS e da Cofins Incidente sobre instituições financeiras no regime cumulativo

Abstract

This study aims to examine the controversial issue of the calculation basis of the social contributions levied on revenues (PIS and Cofins) arising from financial institutions’ core business under the cumulative taxation system, especially after the changes enacted by Law No. 12.973/14, published in the Brazilian Oficial Gazette on May 13, 2014. In order to achieve this goal, the study first undertook the legislative and jurisprudential history involving the calculation basis of these social contributions and then analyzed it specifically in the cumulative taxation system, which remains applicable for financial institutions, as well as the Federal Supreme Court’s (STF) current understanding on the matter while its final word is not given in the judgement of the RE 609.096-RG/RS. !e study also analyzed the impacts enacted by Law No. 12.973/14, which changed the concept of “gross revenues”, the taxable basis for PIS/Cofins, thereby also modifying the calculation basis for these social contributions. Indeed, it was a mistake to subject typically derived income from the activities of financial institutions to taxation by PIS/Cofins, because such income did not fall within the concept of revenues arising from the company’s core business, whose meaning was then limited to the provision of goods and services. After the enactment of Constitutional Amendment No.20/98 and Law No. 12.973/14, however, if the financial institution’s main activity is financial (that is, financial revenues have the greatest representativeness in terms of operating revenues for it), then this will be accounted as the gross revenue for PIS and Cofins.