Reforma do PIS e da Cofins: será desta vez?

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Acaba de chegar à Casa Civil da Presidência da República o projeto de lei da reforma do PIS e da Cofins, a segunda mais importante fonte de arrecadação do governo federal. É o mesmo projeto que em agosto o ministro da Fazenda Joaquim Levy pediu urgência, considerando-o como essencial para a retomada do crescimento da economia e da geração de empregos.

Tenho um amigo muito otimista, e quando vejo algo assim preciso recorrer ao otimismo dele para não ter uma crise histérica e não perder as esperanças de que haverá uma saída para a atual situação econômica do país. Isto porque, no primeiro dia que trabalhei na minha vida, fiquei todo o expediente lançando números num programa de computador para atualização de valores indevidamente pagos a título de PIS e Cofins.

Foi em 1995, e a jurisprudência que julgava inconstitucional o aumento da base de cálculo disposto pelos Decretos-Leis 2.445 e 2.449, ambos de 1988, já estava consolidada, tanto é que naquele mesmo ano foi publicada a Resolução 49/1995 do Senado, assegurando os benefícios da decisão a todos os contribuintes.

Em decorrência da publicação da Resolução, passei os próximos anos como estagiária montando enormes processos administrativos para compensação dos valores pagos indevidamente. E acompanhando os processos judiciais, os quais a Receita Federal alegava decadência e refutava os valores das planilhas – normalmente o contribuinte queria de volta R$ 1 mil e a Receita reconhecia R$ 100.

Em 1998, a Lei nº 9.718, trouxe nova alteração e novas discussões, principalmente em relação à elevação de alíquota da Cofins que foi de 2% para 3% e novamente a ampliação da base de cálculo das duas contribuições. Contra estes aumentos foram minhas primeiras ações como advogada. Somente em 2005, o STF declarou-se favorável ao aumento da alíquota e desfavorável ao aumento da base de cálculo.

Antes, da decisão do Supremo, porém, tivemos a Emenda Constitucional nº20/1998 que alterou a possibilidade da base de cálculo destas contribuições. E as Leis nº10.637/2002 e 10.833/2003, que criaram a não-cumulatividade para estas contribuições e aumentaram as alíquotas de 3,65%, para 9,25%. Ensejando inúmeras discussões, que são objeto da reforma agora proposta.

É preciso dizer ainda, que o PIS e a Cofins instituídos respectivamente pelas Leis Complementares 07/70 e 70/91 são contribuições sociais incidentes, originalmente, sobre o faturamento, e desde tempos mais remotos que os relatados aqui, discute-se a incidência do ICMS como base de cálculo destes tributos. Neste 2015, houve julgamento do pleno do STF, excluindo o imposto da base, mas a questão ainda aguarda o julgamento de outro processo com repercussão geral para ficar efetivamente sedimentada.

Deste brevíssimo histórico, extraído de minhas memórias, é possível destacar duas óbvias conclusões, nenhuma alteração legal proposta em 20 anos, trouxe simplificação ou redução da carga tributária para as contribuições do PIS e da Cofins. Ao contrário, as alterações engendradas no início do século 21, trouxeram uma complexidade que ainda não foi desatada – e mesmo antes disto, quando as contribuições eram simplesmente calculadas sobre o faturamento, toda alteração foi objeto de discussão.

Por este motivo, desacredito em melhoras econômicas advindas de uma reforma pontual e apressada no PIS e na Cofins. Todavia, como disse no inicio, peguei emprestado o otimismo de meu amigo, e espero que esta reforma, somada à do ICMS, possam trazer algum alento a economia, bem como mais racionalidade ao sistema tributário, já que haverá reforma em três importantes tributos. De minha parte continuarei brigando pelo direito dos contribuintes e é possível que me aposente fazendo o que fiz desde o meu primeiro dia de trabalho.

Fernanda Terra, é especialista em Direito Tributário e sócia do Terra, Pimentel e Vecci Advogados Associados.

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