PIS/COFINS unjustified payment on cigarettes in the tributary substitution system under the view of RE 596,832 judgment (Topic 288, STF)

Abstract

The present work analyzes the tax substitution regime levied on cigarettes, in the cases of payment of the Social Integration Program - PIS and for the Financing of Social Security - COFINS, a situation regulated by Law Law 11.196/2005, in article 62, especially in the judgment of RE No. 596,832, under the system of general repercussion judgments (Theme 228/STF), which defined that the refund of the difference of contributions to PIS/COFINS collected in excess, in the tax substitution regime, is due, if the effective calculation basis of operations is lower than assumed. In the first part of the work, a retrospective is made on tax collection and its conceptualization. Then, it analyzes the tax constitutional principles that support the decision of the STF. In the third part, it analyzes the figures of PIS/COFIN. In the last chapter, it deals with the collection of PIS/COFINS related to the tobacco industry. It concludes that, based on the judgment of the Supreme Court, it is up to the refund of amounts unduly collected by the resellers of the product, in the condition of tax substitutes. The work is based on the historical-monographic method, with an deductive approach, and while the research technique, bibliographic, legislative, jurisprudential documentation and case study, this latter on RE nº 596.832 judgment. It is concluded, in accordance with Thesis 228 of the STF, that when PIS/COFINS is charged on cigarettes with exclusion, in the tax substitution regime, the refund of the difference of the contributions collected in excess is due, but showing that the base of Actual knowledge of operations must be less than assumed.