PIS/COFINS and non-cumulatively: Covering of the term “inputs” and credit possibilities.
The PIS(Social Integration Program) and COFINS (Contribution to Social Security Financing) are
social contributions, whose generating fact is the revenue raised by the legal entity. Thus, the calculation
basis of the mentioned contributions is the revenue obtained during the assessment period. Therefore, it is
implied that the larger the company revenue is, the larger the tax burden allocated to is.
PIS and COFINS are, for companies that opt for the systematic collection taxable income, not
cumulative, as subject of the § 12 of art. 195 of the Federal Constitution, with option the ordinary legislator
to apply the non-cumulative to the contributions to be controlled by them. That said, the law No
10.651/2002 and law 10.833/2003 brought the non-cumulative for regulation of PIS and COFINS.
The non-cumulative stemmed as a constitutional principle that aims to inhibit the double payment
of the tax on the same good or service. To achieve this purpose, the non-cumulative is endowed with
various techniques. Thus, the legislator is guided in the accumulation of credits to be slaughtered in the
amount due by way of tribute. This is the operation of debits and credits, reducing frontally in the amount
due.
The arts. 3 of the aforementioned laws bring the possibility of crediting the amounts paid for
inputs, i.e., the amount spent for the purchase of inputs to foster business purpose of the corporation shall
suffer the incidence of PIS and COFINS, resulting in the value of credit to be deducted from the amount
due to PIS / COFINS. It is, thus, of the unburdening of taxes targeted to any company that has obtained
billing.
Until that point, it discussed only the literalness of the legal text, which has express provision on
inputs in this sense. The discussion gets more concrete contours when one questions the extent / meaning
of the input term given by the Public Fiscal Administration. It’s questioned which purchases of goods,
products or generation of costs can be considered inputs, generating credits in favor of the taxpayer.
The IRS (Income Tax of Individuals), through the IN (Normative Instruction ) 247 and IN 404,
limited the scope of the input term, linking the concept of input PIS / COFINS to the scope of the definition
of inputs used for non-cumulative IPI (Excise Tax).
It is noted, therefore, that the government chose in host the inputs for purposes of credit of PIS and
COFINS under the guise of physical criteria, i.e., to be input able to generate credit, this should integrate
the final product or suffer wear or transformation during the production process as well as being used as
packing:
I - used in the manufacture or production of goods for sale: (Included by IN SRF
358, of 09/09/2003).
a) Raw materials, intermediate products, packaging material and other goods that
suffer changes such as wear and tear, damage or loss of physical or chemical
properties as a function of action exerted directly on the product manufacture,
which are not included in the fixed assets; (Included by IN SRF 358, of
09/09/2003).
b) The services provided by legal entities domiciled in the country, applied or
consumed in the production or manufacture of the product; (Included by IN SRF
358, of 09/09/2003)
II - used in providing services: (Included by IN SRF 358, of 09/09/2003)
a) The goods applied or consumed in the provision of services, provided they are
not included in fixed assets; and (Included by IN SRF 358, of 09/09/2003)
b) The services provided by legal entities domiciled in the country, applied or
consumed in providing the service. (Included by IN SRF 358, of 09/09/2003)
Incurred, by foregoing, the tax administration in explicit illegality, especially the relationship of
the concept of inputs able of crediting for PIS and COFINS the materiality of IPI. Consider:
1) The Materiality of IPI is integrated by industrialization of goods, so the concept of input, of
course, is tied to the industrial process. All that collaborates, provides and promotes industrial activity is
taken as input for the purpose of IPI tax credits. In turn, the material criterion of PIS and COFINS is to
obtain revenue / turnover, i.e., the same content of the IPI input would be all that collaborates, fosters and
promotes obtaining revenue. Therefore, it is all goods and services within the company's activities in
pursuit of its revenues.
For these reasons, the concept of input is not uniform or constant for all taxes, especially the
meaning of the input term itself. This always it will bind a context to gain the peculiar significance, as
definition adduced by André Mendes Moreira (2013, p 461.):
The term "input" is defined by the dictionary as "a neologism that translates the expression input,
which means all expenses and investments that contribute to achieving a certain result, commodity or
product until the finish or final consumption.
Now, therefore, it is not possible to make connection between the inputs for purposes of credit of
IPI and supplies for purposes of credit of PIS / COFINS, only by virtue of the equal spell when they carry
diametrically opposite meanings. It is noted that the meaning is guided in the material criterion tribute,
whose roots are in the Federal Constitution. So harness the concepts alluded input is attempt against the
constitutional discipline. The Administrator flees of the operating limits imposed by the Constitution.
2) The concept of input doesn't have definition expressed in any legislation. The Federal
Constitution is silent when dealing with inputs as well as the laws of PIS / COFINS are silent as to the
definition of this institute. For these reasons, it is noted the obvious intention of the legislature in not to
limit the scope of this institute. It is, therefore, a legislative gap, whose suppression is the exclusive
competence of the Legislature.
Regulatory Instructions of authored by the Federal Revenue have unequivocal nature of
administrative act, especially by be edited by Public Agent in the exercise of their activities. Given the
nature of administrative act, it is concluded that the IN 247 and IN 404 could not treat the concept and
scope of the input term, because of the administrative act has infra-legal character and supplementary to
this, has function of regulatory the concepts legal , i.e., the scope of action of the Administrative Act is
restricted to the wording of the law, is not allowed to overtake or counteract definitions established in the
core of the legal norm.
Thus, if the law does not conceptualized the term inputs for purposes of delimitation of PIS /
COFINS, the IRS cannot standardize this concept by means of an administrative act. However, the Federal
Treasury issued the IN 247 and IN 404 notorious and has been applied in all cases of calculation and
collection of PIS and COFINS.
Breaking, moreover, the hierarchy of normative instruments and extrapolates the Regulatory
Power of Public Administration. Remains configured thus the illegality of these administrative acts.
3) In conclusion the illegalities, the express prohibition of Federal Revenue of the use credits in
favor of the taxpayer, originated from the acquisition of raw materials for promoting and carrying the final
activity of the company affects the systematic non-cumulative Social Contributions PIS / COFINS.
Moreover, it is option of the legislator to edit non cumulative social contribution, however, by
opting for non-cumulative, cannot restrict it. The Constitution and the ordinary law, in no time, brought this
limitation adduced in the regulatory instructions of the Federal Revenue.
Attack, therefore, constitutional provision which provides for the non-cumulative regime for
social contributions, as already transcribed § 12 of art. 195 CF/88. It is unequivocal, therefore,
unconstitutional of the acts of the Federal Revenue.
That said, the possibility of crediting by the purchase of inputs to generate the revenue cannot be
limited or guided by templates on IN 247 and IN 404, on grounds of unconstitutionality of these legal
instruments. As a result, the input, whose acquisition gives rise the right to the credit, should be understood
as all expenses necessary to achieve the taxpayer's activity.