1st PANEL OF THE UPPER CHAMBER
Process: 10600.720042/2014-69
Parties: SBF Sports Products Trade S/A and National Treasury
Rapporteur: Luiz Tadeu Matosinho Machado
By unanimous decision, the 1st Panel of the Superior Chamber overturned the incidence of Corporate Income Tax (IRPJ) and Social Contribution on Net Income (CSLL) on presumed ICMS credits. In the administrative court, the prevailing position was that the Superior Court of Justice (STJ), in Theme 1,182, treats the topic as defined, providing for the non-incidence of federal taxes.
The case that reached the Superior Chamber involves presumed ICMS credits made available by the state of Paraíba with compensation to the taxpayer, such as the installation of a distribution center in João Pessoa and the generation of 100 direct jobs within two years.
The rapporteur, counselor Luiz Tadeu Matosinho Machado, considered that the STJ precedent taken in repetitive appeals 1,945,110 and 1,987,158 should be applied to the case. When analyzing the cases, in 2023, the 1st Section defined that tax benefits such as deferral and reduction of the ICMS rate should not be taxed, as long as the requirements set forth in article 10 of Complementary Law 160/2017 and in article 30 of Law 12,973/2014 are met.
Although the precedent does not address presumed ICMS credits, Matosinho pointed out that the STJ, at a certain point in the ruling, considered that the issue had already been defined, through EREsp 1,517,492. In the appeal, which was not analyzed as repetitive, the 1st Section considered that presumed credits cannot be taxed by IRPJ and CSLL, under penalty of violating the federative pact.
For the rapporteur at Carf, even though the repetitive action does not deal with presumed credit, the STJ implicitly admitted that the issue has been resolved, in a way that is contrary to taxation.
Councilors Fernando Brasil de Oliveira Pinto and Maria Carolina Maldonado Mendonça Kraljevic voted in favor of the conclusions. Kraljevic emphasized that she believes that Carf is not obliged to follow the understanding reached in EREsp 1,517,492, which was not judged as repetitive. However, she believes that the council needs to analyze whether the ICMS benefits were granted with some consideration, which, in this specific case, occurred.
Source: https://jota.pro/tributos/9281