Brazil: New Regulation on PIS/COFINS

published on 13 January 2023 | reading time approx. 3 minutes

On 20th December, the Brazilian Federal Revenue Office (RFB) published in the Federal Official Gazette, Normative Ruling No. 2121/2022, which has the purpose of redefining the regulations on the PIS and COFINS social contributions.

In Normative Ruling No. 2121/2022, which replaced IN No. 19.11/19, it consolidates the new guidelines on ascertainment, collection, inspection, collection and administration of the contributions for: (i) PIS/Pasep; (ii) Contribution for the Financing of Social Security (Cofins); (iii) PIS/Pasep-Import Contribution and (iv) Cofins-Import.

In view of the new changes, some tax regimes are not applicable to the novelties presented in the IN as showed in article 5:

to the Special Tax System of the Affected Assets dealt with in Law no. 10,931, of 2 August 2004; and
to the Special Unified System for Collection of Taxes and Contributions owed by Microenterprises and Small Companies (Simples Nacional) dealt with in Supplementary Law No. 123 of 14 December 2006, except with respect to the specific provisions referring to the taxes mentioned in the preamble dealt with in that Supplementary Law.

In addition to these changes, the new regulation has consolidated in its exemplifying list what is to be considered important points such as the Calculation Basis, the Cofins additional, new controls for credit of assets, and the positivation of the exclusion of the ICMS detached. Below we see:

Calculation Basis: 1.65 percent, for the Contribution to PIS/Pasep credits; and 7.6 percent, for Cofins credits. – There is a change in the manner of calculating the acquisition value since the portions of the acquisition value of the items not subject to the payment of the Contribution to PIS/Pasep and Cofins do not generate the right to credit. (Articles 170 and 171)
Additional Cofins: In the Article 279 brings the lists of Tipi codes which will have an additional 1 percent in the Cofins-Import rates, and it should be noted that the addition will be valid until 31 December 2023.
New controls for credit of assets: In case the legal entity does not adopt the same criterion of ascertainment of credits of the Contribution to the PIS/Pasep and Cofins for all the assets of its fixed assets, it must keep accounting records or spreadsheets separately for each criterion. Sole Paragraph. The criterion adopted for the ascertainment of credits in respect of fixed assets must be the same for the Contribution to the PIS/Pasep and Cofins. (Article 188). – The IN brought about the obligation to keep the records separately for each criterion.
Exclusion of the detached ICMS: After the discussion of Issue 756 at the STF, the Exclusion of the ICMS in the calculation basis of PIS and Cofins becomes more concrete, being established by article 26 of this IN, in attention to the sole paragraph, which has the following wording: With regard to the exclusion mentioned in item XII, the amounts of ICMS detached in tax documents referring to sales revenues made with suspension, exemption, zero rate or not subject to the levy of the contributions cannot be excluded.

The Normative Ruling tried to solve the problems of IN No. 19.11/19, including penalties, positivization of the thesis of the century and tax benefits. These benefits are part of the Reintegra program, which is a program created by the government to encourage the export of manufactured products:

Percentage for calculation of credit: The legal entity that exports the goods referred to in the caput of art. 240 (1. has been industrialized in the Country; 2. is classified in the Tipi code listed in Annex VI (Law no. 13,043, of 2014, art. 23, caput, item II; and Decree no. 8,415, of 2015, art. 5, caput, item II, and Annex); and 3. has total cost of imported inputs not exceeding the percentage limit of the export price set forth in the Annex), may calculate credit by applying the percentage of 0.1 percent on the revenue earned with the export of such goods abroad (Article 235).
The ascertained credits will be: 1. 17.84 percent will be returned as Contribution to PIS/Pasep; and 2. 82.16 percent will be returned as Cofins.

The new regulation met some needs that were previously discussed and brought a direction to some tax issues that were open, establishing the exclusion of the detached ICMS and delimiting some forms of tax regime for the application or not of the regulation on the contribution.