The Federal Revenue Service has determined that taxpayers will not be entitled to compensatory interest on tax credits resulting from ICMS tax incentives. Through the Normative Instruction 2,214/2024, published this Thursday (5/9) in the Official Gazette of the Union, the agency determined that companies will not be entitled to this interest either in the reimbursement or in the offsetting of tax credits. In practice, what the government is preventing is the incidence of the basic interest rate (Selic) on these amounts. The measure is bad for companies, which will not receive remuneration on their credits.
Through Law 14,789/2023, known as the Subsidies Law, the federal government changed the tax treatment system for ICMS incentives. Instead of authorizing taxpayers to deduct these benefits from the calculation basis for IRPJ, CSLL, PIS and Cofins, the government started granting a tax credit linked to these benefits. However, the taxpayer will need to prove that this incentive is aimed at the expansion or implementation of economic ventures.
The controversial law already provided that taxpayers would receive these credits through reimbursement or compensation. Lawyers interviewed by JOTA stated that the new change is that, in IN 2.214/2024, the IRS prohibits the remuneration of these amounts. The rule added item V to article 151 of IN 2.055/2021, which deals with refunds, compensations, reimbursements and reimbursements within the scope of the IRS, to impose the restriction. The new wording expressly prohibits the incidence of compensatory interest on the taxpayer's credit in the reimbursement or compensation of tax credits resulting from subsidies for the implementation or expansion of an economic enterprise.
Compensatory interest is a way of remunerating capital and is charged until the obligation matures, while default interest compensates the creditor for late payment. Both are represented by the Selic rate in federal tax matters.
IN 2,214/2024 also changed the wording of article 152, first paragraph, of IN 2,055/2021 to define that the starting date for the correction by the Selic rate of the credit related to a tax administered by the IRS will be the month following the 360th day, counted from the date of the filing of the original refund request. The previous text stated that the starting date would be the 361st day, without referring to the subsequent month. However, article 152 of IN 2,055/2021 provides for this correction only if there is no specific refund of IPI, PIS and Cofins credits and related to Reintegra within 360 days. The text did not include tax credits arising from the Subsidies Law.
For tax specialist Igor Mauler Santiago, from the Mauler Advogados law firm, the ban on interest on tax credits leads to confiscation. “The Union will use taxpayers’ money without remuneration. Even compulsory loans had correction and compensatory interest – see the old discussion regarding Eletrobras”, says Mauler.
Tax specialist Daniel Clarke, from the Mannrich e Vasconcelos Advogados law firm, highlighted that taxpayers unsuccessfully requested that Congress explicitly provide for the levy of the Selic rate on tax credits. “The lack of monetary adjustment of credits by the Selic rate represents a significant loss for taxpayers, since the real value of the credit deteriorates over time due to inflation. Despite several requests in this regard, Congress did not accept this demand during the analysis of MP 1185/2023,” said Clarke.
The lawyer emphasized that taxpayers can take the matter to court. It could be argued that it is unreasonable that, on the one hand, the taxpayer is obliged to pay interest when he delays paying taxes and, on the other, the tax authorities do not apply interest when they return a tax credit to him.
On the other hand, tax specialist Eduardo Pugliese, partner at Schneider Pugliese, points out that so-called book-entry credits, such as tax credits arising from the Subsidies Law, are not generally adjusted by the Selic rate. Unlike tax credits, book-entry credits are the amount declared in a company's tax deed, due to a tax benefit. However, he points out that, if there is a delay in recognizing tax credits, default interest should be charged, as is the case with any book-entry credits, according to precedents of the Superior Court of Justice (STJ).
“If the IRS does not authorize the credits or does not recognize them in the amount indicated by the taxpayers, and, later, such credits are approved by the tax administration itself or by the Judiciary, default interest should be charged, calculated from the moment in which such credits could be used by the taxpayers”, said Pugliese.
For example, in Repetitive Theme 1003, judged in 2020, the STJ defined that “the initial term of the monetary correction of reimbursement of excess book-entry credit of tax subject to the non-cumulative regime occurs only after the 360-day period for analysis of the administrative request by the tax authorities has elapsed”. Thus, for Pugliese, there should be an express provision for the correction of the values after this period.
Mauler, however, notes that the STJ case law recognizes that the Selic does not apply to tax credits resulting from non-cumulativeness, that is, those that the taxpayer obtains for having borne the tax on his/her purchases. In the case of the Subsidy Law, he explains, the credit is a tax benefit.
Judicialization of the Subsidy Law
The Subsidy Law has been controversial since its inception. Taxpayers claim that the new system created by the government violates the federative pact, since the Union keeps part of the benefits offered by other federative entities. In particular, companies question the collection of IRPJ and CSLL on presumed ICMS credits. In 2017, in the judgment of EREsp 1517492/PR, the STJ ruled that these credits are not included in the calculation basis of PIS and Cofins, precisely because of the risk of violating the federative pact.
In 2023, in the judgment of Theme 1185, the 1st Section of the STJ defined that IRPJ and CSLL can be charged on other ICMS tax incentives other than the presumed credit, such as rate reduction, exemption and deferral, if the rules provided for in article 10 of Complementary Law 160/2017 and in article 30 of Law 12.973/14 are not complied with.
The issue reached the Supreme Federal Court through ADI 7604, filed by the National Confederation of Industry (CNI), and ADI 7551, by the Liberal Party (PL). There is no forecast for the actions to be judged.
Source: https://jota.pro/tributos/10210