Conceito de insumo: aplicabilidade do conceito amplo para empresas comerciais para fins de creditamento de PIS e COFINS

Abstract

The present study aims to analyze the concept of input and its applicability to commercial companies, for purposes of calculating and crediting contributions to PIS and Cofins. The relevance of the topic is mainly because from Special Appeal No. 1,221,170/PR, in which the Superior Court of Justice (STJ) extended the concept of input, this broader interpretation made it possible for other items applied to the production process of the company, could be classified as inputs. In this scenario, it is possible to say that the commercial companies, before the aforementioned decision, were harmed, given the impossibility of crediting PIS and Cofins. The unequal treatment for these companies draws attention for being in disagreement with the principle of isonomy. Thus, we sought to answer, through bibliographic, jurisprudential and legislative analyses, if in fact the concept of input, in a broad way, is possible to be applied to commercial companies, and what are the benefits. For that, it was necessary to go through the concepts of non-cumulativeness of taxes, in general and from the perspective of PIS and Cofins, as well as the understanding of the operation of commercial companies and, finally, a specific analysis on the current understanding of the Administrative Council of Tax Appeals (CARF) on the matter. In addition, it was necessary to analyze specific legislation, such as Laws No. 10,637/2002 and 10,833/2003, which deal with the non-cumulative nature of PIS and Cofins, demonstrating that both are silent with regard to the concept of input and its applicability to commercial companies, since it conditions the credit of inputs only to companies that provide services or suppliers of goods, excluding those that perform only commercial activity. Finally, it was seen at the end that the concept of input must be analyzed broadly, observing the criteria of essentiality and relevance, as stipulated by the STJ, including for essential goods and/or services for commercial companies.