A EXCLUSÃO DO ISSQN DA BASE DE CÁLCULO DO PIS E DA COFINS À LUZ DOS FUNDAMENTOS ELENCADOS NO JULGAMENTO DA TESE DO SÉCULO

Abstract

The present work aims to analyze the constitutionality of excluding the Tax on Services of Any Kind (ISSQN) from the calculation base of the social contributions PIS and COFINS. The main reference adopted is the judgment of Extraordinary Appeal (RE) 574.706/PR by the Federal Supreme Court (STF), which resulted in the establishment of the thesis that the ICMS tax should not be included in the calculation base of these contributions—commonly referred to in tax circles as the “thesis of the century.” This is a theoretical study, and the main approach adopted is the comparative method, as it conducts a parallel analysis of two emblematic cases, both highly relevant to the issue at hand. Additionally, the inductive method is employed, starting from a detailed analysis of a specific case—Extraordinary Appeal (RE) 574.706/PR—to draw conclusions that may be applied to another case with relevant similarities—Extraordinary Appeal (RE) 592.616/RS—thus allowing the formulation of a more general understanding of the topic. As for the research techniques used, the work is based on bibliographical and documentary research, involving consultation of authoritative legal literature, specialized manuals, academic articles, applicable legal provisions, and, most notably, judicial decisions and relevant precedents, which form the foundation for a critical analysis of the subject under study. The chapters begin by revisiting key tax law concepts related to the analyzed cases. Next, an overview is presented of the main arguments used in the judgment known as the “thesis of the century,” which led to the decision to exclude the ICMS from the PIS and COFINS calculation base. This includes a discussion of the concepts of revenue and gross receipts, the constitutionality of taxing one tax over another, and the impacts of the ICMS’s non-cumulative nature. Finally, the work examines the possibility of applying these arguments to the case involving the ISSQN, known as the “offspring thesis.” The analysis considers both formal and substantive aspects of the debate, assessing any differences between this case and the ICMS precedent. It thus evaluates whether the arguments used in RE 574.706/PR are applicable to RE 592.616/RS in a way that supports the exclusion of ISSQN from the PIS and COFINS tax bases. Like the ICMS, the ISSQN does not constitute revenue for the taxpayer; it is an amount owed to government entities and does not definitively become part of the company's assets. Therefore, it should not be included in the calculation base for PIS and COFINS, as it is not corporate revenue or gross receipts. In conclusion, the exclusion of ISSQN is legally sound, aligned with the reasoning adopted by the STF in RE 574.706/PR and consistent with the principles of coherence, legal certainty, and respect for constitutional principles that are expected of judicial decisions, as required by the Brazilian Civil Code.