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STF excludes municipal services tax (ISS) from the PIS and Cofins tax bas

The Federal Supreme Court (STF) concluded on 21 October 2026 the judgment of RE 592.616 (“Tema” 118 under the general repercussion system, “repercussão geral”, which produces binding theses) and set the following thesis: “O valor correspondente ao ISS não integra a base de cálculo das contribuições sociais referentes ao PIS e à Cofins, pelo fato de o ISS qualificar-se como simples ingresso financeiro que meramente transita, sem qualquer caráter de definitividade, pelo patrimônio e pela contabilidade do contribuinte, sob pena de transgressão ao art. 195, I, ‘b’, da Constituição da República (na redação dada pela EC nº 20/98)” — that is, the amount of ISS (municipal services tax) is not part of the base of the PIS and Cofins social contributions, because it is a mere financial inflow that passes through the taxpayer’s assets and books without permanence. The vote was 6 to 5. Following the rapporteur, Justice Celso de Mello (retired), were Justices Rosa Weber (retired), Cármen Lúcia, Ricardo Lewandowski (retired), André Mendonça and Luiz Fux, who cast the deciding vote; Justices Dias Toffoli, Alexandre de Moraes, Edson Fachin, Gilmar Mendes and Luís Roberto Barroso (retired) dissented.

The ground is the concept of revenue and turnover in article 195, I, “b”, of the Constitution. For the majority, the ISS amount is not a permanent increase in the service provider’s assets but in those of the municipality holding the taxing power; treating it as revenue would erase the distinction between a transitory financial inflow and revenue and would broaden the constitutional scope of the contributions. The appeal relied on the Court’s prior understanding on the exclusion of ICMS (state value-added tax) from the same base.

For service providers subject to PIS and Cofins, the thesis, binding on the other courts, now guides the calculation of the contributions, tax assessments and disputes over amounts paid with ISS in the base, as well as provisions and contingencies recorded on the matter.

The Court did not examine the modulation of effects, a point that may be considered if motions for clarification (“embargos de declaração”) are filed; until then, any time frame for applying the thesis remains open. The full decision has not yet been published.