The 1st Panel of the Superior Court of Justice (STJ) decided this Tuesday (8) that gains obtained from tax incentives granted by the States do not need to be included in the calculation basis for Income Tax (IRPJ) and CSLL. The ministers stated that the interference of the Union – taxing what was not paid to the States – would empty the benefit. The decision was unanimous.
The case analyzed by the panel involves an incentive program of the State of Santa Catarina – Prodec. There are no other judgments in the Court, to date, about this program specifically. However, the 1st Section – which unites the two public law panels – has at least three decisions about the taxation of “gains” obtained with tax benefits and incentives. All against the Union’s request.
The appeal judged this Tuesday had been filed by Vonpar, from the beverage sector, against a decision by the Regional Federal Court of the 4th Region (South of the country) that determined the inclusion of the values in the calculation basis for federal taxes (REsp nº 1222547).
The company obtained the incentive from the State of Santa Catarina as compensation for the expansion of the factory. It was agreed that the ICMS installments could be paid in up to 36 months with an interest rate of 4% per year – which, at the time, was well below the Selic, the rate charged to other taxpayers who delay payment of the tax.
The judges understood the application of Interpretative Declaratory Act No. 22, published by the Federal Revenue Service in 2003. This rule considers that the deferred payment of ICMS does not represent a waiver on the part of the Tax Authorities.
However, the 1st Panel's understanding of the matter was opposite to that of the TRF. This case had been brought to the agenda for the first time in December. At that time, only the rapporteur, Minister Regina Helena Costa, cast a vote – against the taxation of the amounts by the Union. She understood the program of the State of Santa Catarina as a legitimate tax incentive and said that there could be no interference from another entity.
“If the purpose of the rule is to relieve a business segment of a certain tax burden, it is undeniable that the reappearance of the charge, even if under a different guise, will result in the passing on of additional costs to the goods,” he stressed when casting his vote.
Discussions resumed on Tuesday with the vote of Minister Gurgel de Faria. He and the other three ministers who had not yet spoken out followed the rapporteur.