The Superior Court of Justice (STJ) published this Monday (12/6) the ruling of the trial that authorized the taxation of IRPJ/CSLL on ICMS tax incentives. The decision was made on April 26 and has as an exception the situation in which the taxpayer complies with the rules set forth in article 10 of Complementary Law 160/2017 and in article 30 of Law 12.973/14.
The main doubt regarding the judgment on the inclusion of ICMS tax benefits in the IRPJ and CSLL basis – whether there is a distinction between subsidies for costs and investments – is addressed in several of the votes released this Monday (12/6). See the full ruling and of the vote of the rapporteur, Benedito Gonçalves, in Resp 1,945,110.
In the judgment, the ministers also decided that the precedent that considered that presumed ICMS credits do not enter the calculation basis of IRPJ and CSLL (EREsp 1517492/PR) should not be extended to other ICMS tax benefits.
The thesis of the rapporteur, Justice Benedito Gonçalves, prevailed. The judge stated that, since 2017, the 1st and 2nd Panels have been accepting taxpayers' requests, but on different grounds. The 1st Panel extended the precedent on the presumed ICMS credit to the other tax benefits of the tax. The 2nd Panel, in turn, understood that it was not possible to extend the precedent, but that, based on LC 160/17, if companies proved certain conditions, taxation could be waived.
For the minister, the second position should prevail, under the provision that taxation should be waived in the event of compliance with legal requirements. The rapporteur himself adjusted his position, since he followed the understanding of the first panel, which extended the 2017 precedent. “In summary, therefore, the controversy does not consist of knowing whether or not the ICMS tax benefits will be taxed by IRPJ and CSLL, but whether or not the exclusion of these benefits from the IRPJ and CSLL calculation basis will require compliance with the conditions and requirements provided for by law,” said the rapporteur.
The judgment contains the following thesis:
1. It is impossible to exclude tax benefits related to ICMS – such as reduction of the calculation basis, reduction of the rate, exemption, deferral, among others – from the calculation basis of IRPJ and CSLL, except when the requirements provided for by law are met (art. 10 of Complementary Law No. 160/2017 and art. 30 of Law No. 12,973/2014), and the understanding established in ERESP 1,517,492/PR, which excluded the presumed ICMS credit from the calculation bases of IRPJ and CSLL, does not apply to them.
2. To exclude tax benefits related to ICMS – such as reduction of the calculation basis, reduction of the tax rate, exemption, deferral, among others – from the calculation basis of IRPJ and CSLL, proof of concession as an incentive to the implementation or expansion of economic ventures should not be required.
3. Considering that Complementary Law 160/2017 included §§ 4º and 5º to art. 30 of Law 12.973/2014 without, however, repealing the provisions of its § 2º, the exemption from prior proof, by the company, that the tax subsidy was granted as a measure to stimulate the implementation or expansion of the economic enterprise does not prevent the Federal Revenue Service from proceeding with the assessment of IRPJ and CSSL if, in an inspection procedure, it is found that the amounts originating from the tax benefit were used for a purpose other than guaranteeing the viability of the economic enterprise.
tumultuous trial
The trial by the 1st Section of the STJ was tumultuous. This is because on April 26, shortly before the session began, STF Minister André Mendonça granted an injunction to the Brazilian Agribusiness Association (Abag) and ordered the suspension of the analysis of the repetitive cases in the STJ until the final decision on the merits in RE 835,818, which discusses the inclusion of presumed ICMS credits in the calculation basis of PIS and Cofins.
Despite the order to halt the trial, the rapporteur, Minister Benedito Gonçalves, stated that the STJ had not yet been officially notified of the STF's decision and that, therefore, the trial could continue.
A week later, Mendonça accepted the Union's argument of possible damage to the public coffers and reviewed the injunction. As a result, the STJ decision that authorized the taxation of IRPJ/CSLL on ICMS tax incentives was upheld if specific rules were not complied with.