The ministers of the 1st Panel of the Superior Court of Justice (STJ) unanimously upheld the decision of the Federal Regional Court of the 2nd Region (TRF2) that allowed the collection of tax credits related to IRPJ and CSLL on profits earned by companies abroad controlled by Light Serviços de Eletricidade S/A.
By means of a writ of mandamus, the company obtained an injunction to prevent the use of the so-called equity method (MEP) in determining these profits. This method allows calculating the share of subsidiaries, controlled or associated companies, for example, in the value of the company. Therefore, without using this method, in practice, the debt calculated for the year 2004 was R$20.4 million in IRPJ and R$9.2 million in CSLL.
After that, in order to have access to the tax installment plan granted by Law 11.941/2009, known as Refis, Light withdrew the writ of mandamus. With that, the company understood that it could also recalculate the tax debt, this time using the equity method (MEP). The Treasury will charge the difference in the tax amount based on the new calculations.
In its ruling, the court of origin concluded that the Union is not obliged to accept the recalculation of the amounts, since the waiver affects the waiver itself. Furthermore, the TRF2 stated that the equity method itself was deemed illegal by the STJ.
At the STJ, the rapporteur, summoned judge Manoel Erhardt, reaffirmed the understanding of the court of origin, upholding the decision. “[At the TRF2], the rapporteur understood that the waiver of the right does not impose any obligation on the opposing party [that is, the Union]. He understood that only the waiving author would have made it impossible to claim that right again, but there was no imposition on the opposing party”, stated Erhardt.
“The Treasury cannot be required to adopt the equity method and, what is more, to adopt the method in the form intended by the author,” he said.