Although the STF has already decided in the emblematic RE 574,706 (theme 69) that ICMS should not compose the basis for calculating PIS and COFINS because it does not constitute taxpayer revenue, when judging RE 1,187,264 (item 1048), the Court recognized the constitutionality of the inclusion of ICMS in the base for CPRB calculation.
The divergence was opened by Minister Alexandre de Moraes and followed by Ministers Luiz Edson Fachin, Gilmar Mendes, Dias Toffoli, Nunes Marques, Luís Roberto Barroso and Luiz Fux. Ministers Marco Aurélio (rapporteur), Ricardo Lewandowski, Cármen Lúcia and Rosa Weber voted for the unconstitutionality of the inclusion of the ICMS in the base for CPRB calculation.
With the conclusion of the judgment in an unfavorable way to taxpayers, the following thesis was established: “It is constitutional to include the Value-Added Tax – ICMS in the calculation base of the Social Security Contribution on Gross Revenue – CPRB”.
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