What to expect from the revocation of Decree nº 11.322/22?
Taxation of PIS and COFINS contributions on financial income is a topic that usually circulates in the news. And it was no different at the end of 2022 and beginning of this year.
Until December 30, 2022, the rule was clear that the rates were 0.65% and 4%, respectively, for PIS and COFINS levied on financial income, including those arising from operations carried out for hedging purposes, calculated by legal entities subject to the non-cumulative calculation regime.
On the penultimate day of last year, Decree No. 11,322/22 was published, reducing these rates to 0.33% and 2%. Happy contributors; however not for long.
On the first day of 2023, the current government revoked said decree, reestablishing the previous rates. The determination of the current decree is that it enters into force on the day of its publication, which was made on Monday, January 2nd.
The discomfort generated is because the Federal Constitution provides that the increase in these contributions must respect the 90-day principle – i.e., the payment of higher rates can only be demanded after 90 days of publication of the decree. As in the decree there is no express mention that the 90-day principle will be respected, the companies are afraid that the government and the tax authorities, from now on, will apply the increased rate.
Considering that there was no formal position on the part of the government or the tax authorities in the sense that the ninety-day period will be respected, the consideration that is left to the taxpayers is on the filing of a preventive action (writ of mandamus) to ensure that the 90-day period is respected.
There is precedent on the subject in the Federal Supreme Court (STF), which has already decided on the possibility of increasing rates by decree, but the need to observe the 90-day period is undisputable.
