By applying the casting vote, the 1st Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) ruled out the possibility of deducting expenses with the payment of Interest on Equity (JCP) late. In the last cases judged on the subject, in 2022, the decisions had the application of the pro-taxpayer tiebreaker.
The case under judgment was 16682.720380/2012-52. The understanding of the panel was that it is only possible to deduct expenses with JCP from the IRPJ and CSLL base of the year in which the calculation took place. This position was expressed by counselor Edeli Pereira Bessa when opening a dissent from the rapporteur, Luis Henrique Marotti Toselli. For the judge, there could be no deliberation of JCP for previous years, which already had profit allocated.
The rapporteur argued that there is a settled understanding in the Superior Court of Justice (STJ) to allow the retroactive deduction of JCP. There was a decision favorable to the taxpayer in the STJ in a case involving Luizacred SA, in REsp 1945363, in 2022. “Given the consolidation of the STJ's jurisprudence, I understand that there is no room for redress to the appellant”, he stated.
In a new analysis, the STJ unanimously allowed the deduction of JCP from previous periods. The case is REsp 1,950,577, from Turmalina Gestão e Administração de Recursos S.A. In the ministers' assessment, there is no prohibition on untimely deduction.
In his vote, the chairman of the panel, counselor Fernando Brasil de Oliveira Pinto, defended the impossibility of deducting retroactive JCP. Regarding the STJ's position, the judge emphasized that it is not necessary for decisions to be in a repetitive procedure for him to adopt the understanding. The counselor stated that if the court repeatedly makes the same decision in favor of the taxpayer, in the future he himself can change his understanding without the need for repetition.
The same decision was adopted in processes 16327.720529/2014-12 and 16327.720509/2014-33, which dealt with the same topic, Banco J. Safra.