Superior Court of Justice (STJ) prohibits the exclusion of ICMS exemption from the calculation of Income Tax (IR) and Social Contribution on Net Profit (CSLL).

The ministers of the 2nd Panel differentiated the situation regarding the withdrawal of presumed credit from the account.

The Second Panel of the Superior Court of Justice (STJ) rejected a taxpayer's request to exclude from the calculation base of Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL) the amounts that were not transferred to the State – as ICMS (Value-Added Tax) – due to tax exemptions. According to the justices, this situation differs from the presumed tax credit argument, which has already been analyzed favorably for companies.

This is the first time this distinction has been seen in the Court. There has been jurisprudence regarding presumed ICMS credits since 2017. The justices understand that the gain obtained by the company with this specific incentive cannot be accounted for as profit. For this reason, it is not included in the calculation of IRPJ (Corporate Income Tax) and CSLL (Social Contribution on Net Profit).

Since this thesis was established, according to the Attorney General's Office for the National Treasury (PGFN), taxpayers have been trying, in court, to have any and all tax benefits granted by states removed from the calculation of federal taxes. Prosecutors call them "offspring theses."

The case being analyzed by the 2nd Panel in yesterday's session is an example of this attempt. A company from Paraná, operating in the beverage sector, obtained the right to ICMS exemption on sales of basic food basket products to end consumers. It requested that the amounts not passed on to the State be excluded from the calculation base of IRPJ and CSLL.

After losing in the Regional Federal Court (TRF) of the 4th Region, in Porto Alegre, he appealed to the STJ to try to reverse the decision (REsp 1968755). Prosecutor Caroline Marinho argued to the ministers, during the trial in the 2nd Panel, that the taxpayer was trying to transform a "state benefit" into a "federal benefit." "He wants to remove something from the calculation that was never part of it. It reveals the fabrication of credit," she said.

The case's rapporteur, Minister Mauro Campbell Marques, agreed. "Anyone who receives an exemption from any tax, whether municipal, state, or federal, simply ceases to be obligated to pay. It does not mean the inflow of new revenue, as happens in cases of granting presumed credit," he emphasized.

When the Court decided to exclude presumed ICMS credits from the tax base, Campbell Marques recalled, the rationale was that the federal pact should be protected. Allowing interference from the Union would affect the credit granted by the State – nullifying the benefit.

In this other case, the minister highlighted, the opposite would occur. " If every time an exemption or reduction in the ICMS tax base is granted by the State, the Federal Government is automatically obligated to reduce the company's Income Tax and CSLL (Social Contribution on Net Profit), the logic is reversed. "

Campbell Marques further stated that in tax reductions and exemptions, the taxpayer is simply foregoing an expense. He treated this as a "negative magnitude," while presumed credits, which in theory constitute revenue, should be considered "positive magnitudes."

Campbell Marques' understanding was shared by all the ministers of the panel. They decided to return the case for further analysis in the court of origin. The taxpayer claimed there had been an omission in the second instance court's judgment because the judges did not address the application of Law No. 12,973 of 2014 – which deals with investment subsidies.

In March, a taxpayer obtained a ruling to exclude "gains" related to tax benefits in the 1st Panel of the Superior Court of Justice (STJ). In this case, however, there was a counterpart. The company agreed with the State of Santa Catarina on an installment payment of ICMS (Value Added Tax), with differentiated interest rates, during a period of expansion of its factories (REsp 1222547).

Source: Valor Econômico