The ICMS highlighted on the invoice is not included in the calculation bases for IRPJ and CSLL when calculated under the presumed profit regime. This was the position of the rapporteur, Minister Regina Helena Costa, in a vote presented on Wednesday (10/26) in the judgment of two special appeals that discuss the topic.
For the rapporteur, ICMS, even under the presumed profit regime, does not constitute gross revenue and does not definitively integrate the companies' assets, but is merely an amount transferred to the public coffers. Therefore, it should not be taxed by IRPJ and CSLL.
Regina Helena proposed the establishment of the following thesis: “the ICMS value highlighted on the invoice is not included in the calculation bases for IRPJ and CSLL when determined under the presumed profit regime”.
The rapporteur also proposed that the decision be modulated, so that it would take effect upon publication of the judgment. The judge explained that, in the STJ, only the 2nd Panel had considered the matter, in 2013, and with an understanding contrary to the taxpayer, that is, by including ICMS in the IRPJ basis and CSLL in the presumed profit. Therefore, with the change in this case law, the modulation of effects would be appropriate.
After Regina Helena's vote, the trial was suspended due to a request for review by Minister Gurgel de Faria and there is no date set for it to return to the agenda. As the trial is being conducted under the system of repetitive appeals, the result should be applied by courts throughout Brazil in identical cases.
ICMS does not constitute gross revenue
The trial that began this Wednesday at the STJ is discussing, in the background, the system for calculating corporate profits. In general, real profit is the result of the difference between gross revenue and so-called operating expenses. This is what accountants call net profit adjusted for additions, exclusions or compensations provided for by law. Presumed profit is a presumption percentage – which varies from 8% to 32% depending on the economic activity – on the gross revenue of companies.
In her vote, Regina Helena understood that the understanding established by the STF in the judgment of the “thesis of the century”, Theme 69, should be applied. In that case, in 2017, the STF defined that ICMS is not part of the calculation basis for PIS and Cofins, since it is not incorporated into the taxpayer's assets, but constitutes a mere entry into the cash flow and is destined for the public coffers. Subsequently, in a statement of clarification in 2021, the STF defined that the ICMS that should be excluded from the PIS and Cofins basis is the one highlighted on the invoice.
For the rapporteur, even if the calculation of profit occurs using the presumed profit system, this does not change the fact that ICMS does not constitute revenue for companies and does not definitively enter their assets, but is merely an amount transferred to the public coffers.
The judge also said that Law 12,973/2014, by centralizing the definition of gross revenue in what was outlined in Decree 1,598/97, equalized the calculation bases of PIS and Cofins to those of IRPJ and CSLL. In other words, if the STF concluded that ICMS is not part of the PIS and Cofins basis, this same reasoning should be applied in the case of IRPJ and CSLL.
Finally, the rapporteur distinguished the case now under debate from the STF's 2021 decision in Topic 1048, which considered the inclusion of ICMS in the calculation basis for the Social Security Contribution on Gross Revenue (CPRB) to be constitutional. Regina Helena emphasized that, in that case, the STF concluded that the contribution is in the nature of a tax benefit and that this benefit could not be improperly expanded. The presumed profit regime, she said, is not a tax benefit, but an optional system for calculating companies' profits.
“The amount of ICMS highlighted in the invoice must be excluded from the presumed calculation bases of IRPJ and CSLL, either because such amount does not constitute gross revenue and, therefore, does not indicate profit, or because the election for the presumed profit regime is not sufficient to remedy the non-compliance of the systematic pro tal calculation with the limits of the calculation bases, as defined by the STF in a precedent of compulsory compliance”, concluded the rapporteur.
Puppy thesis
In a report sent to subscribers in January, JOTA showed that the ruling involving the inclusion of ICMS in the calculation basis of IRPJ and CSLL for those opting for presumed profit is one of the “subsidiary theses” of Theme 69 of the STF. After the STF ruled that ICMS is not part of the calculation basis of PIS and Cofins, taxpayers rushed to the courts to request the exclusion of other taxes from the calculation basis of contributions and other taxes.
CRISTIANE BONFANTI – Reporter for JOTA in Brasília. She covers the tax area. She has worked for Correio Braziliense, O Globo and Valor Econômico. She has a degree in journalism from UniCeub, a specialization in Political Science from UnB and an MBA in Planning, Budget and Public Management from FGV. She is studying Law at UniCeub.
