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Carf Understands That McDonald’s Cone Is Not Edible Ice Cream And Rejects The Charge Of PIS/Cofins From The Federal Revenue.
The McDonald’s achieved a relevant victory at the Carf by convincing the administrative court that its cones, sundaes, and milkshakes should not be classified as edible ice creams.
The decision was made this month in Brasília by the 1st Panel of the 1st Chamber of the 3rd Section of the council, by five votes to one, and had a direct impact on the taxation of PIS/Cofins, nullifying a charge from the Federal Revenue in the amount of R$ 324 million.
Thus, the operator of the chain in Brazil, Arcos Dourados, gets to enjoy the zero rate of these taxes, a tax benefit reserved for dairy beverages.
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The decision reinforces a technical interpretation of tax legislation and repositions popular products within the Brazilian tax system.
Why The Cone Is Not Considered Ice Cream
Although the appearance and consumption suggest otherwise, the understanding of the Carf was based on technical criteria.
According to the councilors, for a product to be classified as ice cream — or edible ice cream — it must be stored or served at temperatures equal to or lower than -8 °C or -12 °C, according to regulatory standards.
However, McDonald’s proved that its desserts are delivered to consumers between -4 °C and -6 °C.
Thus, technically, the products would be merely chilled, and not frozen. This detail was decisive in dismissing the traditional classification defended by the Federal Revenue.
Technical Reports Supported The Company’s Thesis
In addition to the temperature, another central point of the judgment was the physical nature of the product. Expert reports presented by specialized institutions classified the cone as a “high viscosity liquid” or a “creamy paste.”
According to the defense, the machines installed in the stores only chill the dairy beverage provided by companies like Vigor and Polenghi, without promoting any alteration in its chemical composition.
Thus, the product would maintain its original nature, even though it is consumed with a spoon or in solid form in the eyes of the consumer.
Direct Impact On The Milkshake From McDonald’s
The Carf’s decision also reached the milkshake, another point questioned by the Federal Revenue. The tax authority argued that the addition of syrups and flavors would characterize the product as a non-dairy beverage.
However, technical data presented in the process showed that the milkshake maintains a dairy base exceeding the minimum of 51% required by the Normative Instruction No. 16/2005 of the Ministry of Agriculture.
In the Flocos flavor, for example, this base reaches 73.1%, while in Chocolate it reaches 64.3%.
Thus, the panel understood that, even after the mixture of ingredients, the product continues to meet the legal criteria to be classified as a beverage.
Divergence In The Judgment Of The Carf
Despite the favorable result for McDonald’s, the judgment was not unanimous. Councilor Ramon Silva Cunha presented a dissenting vote, arguing that the degree of viscosity should be determinant for the classification of the product. For him, accepting the company’s thesis distorts the traditional concept of ice cream.
The Federal Revenue also defended a more literal interpretation of the legislation, arguing that the appearance and consistency — solid or pasty — should prevail over technical criteria such as exact temperature.
What Changes Practically With The Decision
With the victory at the Carf, McDonald’s consolidates its tax strategy in Brazil. For tax purposes, the purchase of a cone or a milkshake is now equated with the acquisition of products like yogurts or fermented milks.
In addition to significantly reducing the burden of PIS/Cofins, the decision creates a relevant precedent for the food sector and may influence future discussions involving edible ice creams, dairy beverages, and the actions of the Federal Revenue.
In a scenario of constant dispute between commercial innovation and tax interpretation, the case shows how technical details can redefine widely accepted concepts by consumers — and generate million-dollar impacts on company coffers.
Pois bem! Se o sorvete de casquinha não e sorvete, porque as redes de fast food insistem em promover “o tal sorvete”?