Our partner Roberto Panucci published an article in Conjur on Topic 1,309, in which the STF (Federal Supreme Court) ruled, by majority, that income from the financial investment of technical reserves of insurers and open supplementary pension entities is not part of revenue for PIS and Cofins purposes under Law No. 9,718/1998.
The rationale is regulatory before it is tax-related. Technical reserves exist by prudential requirement, are backed by guarantee assets whose composition is defined by the regulator, and remain tied to the respective provisions, which restricts the company's free use of them. An insurer's typical activity is assuming risk in exchange for a premium, not investing funds it is required to hold. The article, however, delimits the scope of the precedent.
In practice: • The thesis refers expressly to taxation "nos moldes da Lei nº 9.718/1998" [under Law No. 9,718/1998]. Law No. 12,973/2014 changed the legal concept of gross revenue, which may support a new dispute regarding later periods.
• The reasoning does not extend to financial institutions (Topic 372) or closed supplementary pension entities (Topic 1,280). How these precedents coexist was one of the axes of the dissent in the judgment.
• The effects are not limited to tax litigation. The change in perspective on these liabilities may alter how the issue is treated in due diligence, asset valuation, business plans submitted to Susep and capital projections.
• Any extension to local reinsurers will depend on the final wording of the thesis and does not follow automatically from the participation of the industry association as amicus curiae.
As Roberto sums up, Topic 1,309 closes an important stage of the dispute under Law No. 9,718/1998, but shifts part of the discussion to the effects of Law No. 12,973/2014, which should be examined before insurers and open supplementary pension entities treat the exclusion as definitively applicable to all periods.
Read the full article: https://lnkd.in/drkrPyde
