Our partner Roberto Panucci published an article in Conjur on Topic 1,309, in which the STF decided, by majority, that the income from financial investments of the technical reserves of insurers and open supplementary pension entities does not form part of gross revenue for purposes of PIS and Cofins, under the terms of Law No. 9,718/1998.
The rationale is regulatory before it is tax-related. The technical reserve exists by prudential requirement, is backed by guarantee assets whose composition is defined by the regulator, and remains tied to the corresponding provisions, which restricts the company's free use of it. An insurer's typical activity lies in assuming risk in exchange for premiums, not in investing funds that it is required to maintain.
The article, however, defines the scope of the precedent.
In practice
- The thesis expressly refers to the levy "under the terms of Law No. 9,718/1998." Law No. 12,973/2014 changed the statutory concept of gross revenue, which may support a new debate regarding subsequent periods.
- The reasoning does not extend to financial institutions (Topic 372) or to closed supplementary pension entities (Topic 1,280). The coexistence of these precedents was one of the central points of the disagreement that arose in the judgment.
- The effects are not confined to tax litigation. The change in perspective on these liabilities may alter how the issue is handled in due diligence, asset valuation, business plans submitted to Susep and capital projections.
- The extension to local reinsurers will depend on the final wording of the thesis and does not follow automatically from the participation of the representative association as amicus curiae.
As Roberto summarizes, Topic 1,309 closes an important stage of the controversy under the Law No. 9,718/1998 regime, but shifts part of the debate to the effects of Law No. 12,973/2014, which must be examined before insurers and open supplementary pension entities treat the exclusion as definitively applicable to all periods.
Read the full article in Conjur.
