The 2nd Panel of the Superior Court of Justice (STJ) blocked a request from a taxpayer who tried to exclude from the calculation basis of Income Tax (IRPJ) and CSLL the amounts that he failed to transfer to the State \u2013 as ICMS \u2013 due to tax exemptions. According to the ministers, the situation is different from the thesis of presumed tax credit, which has already been analyzed in a favorable way for companies.<\/p>\n\n\n\n
This is the first time that this distinction has been made in the Court. There has been case law regarding presumed ICMS credits since 2017. The ministers 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 IRPJ and CSLL accounts.<\/p>\n\n\n\n
Since this thesis was established, according to the Attorney General's Office of 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. The attorneys call these "subsidiary theses."<\/p>\n\n\n\n
The case being analyzed by the 2nd Panel in yesterday's session is an example of this attempt. A company from Paran\u00e1, which operates in the beverage sector, obtained the right to ICMS exemption on sales of basic food products to end consumers. It requested that the amounts not passed on to the State be excluded from the calculation basis of IRPJ and CSLL.<\/p>\n\n\n\n
After losing in the Federal Regional Court (TRF) of the 4th Region, in Porto Alegre, he appealed to the STJ to try to reverse the decision (REsp 1968755).<\/p>\n\n\n\n
Prosecutor Caroline Marinho argued to the ministers, during the trial in the 2nd Chamber, that the taxpayer was trying to transform a \u201cstate benefit\u201d into a \u201cfederal benefit\u201d. \u201cHe wants to remove from the calculation something that was never part of it. It reveals the fabrication of credit\u201d, she said.<\/p>\n\n\n\n
The rapporteur of the case, Minister Mauro Campbell Marques, agreed. \u201cAnyone who receives an exemption from any tax, whether municipal, state or federal, simply ceases to be obliged to pay it. It does not mean the entry of new revenue, as happens in cases of granting presumed credit,\u201d he stressed.<\/p>\n\n\n\n
When the Court decided to exclude presumed ICMS credits from the calculation basis, Campbell Marques recalled, the reasoning was that the federative pact should be protected. Allowing the Union to interfere would have an effect on the credit granted by the State \u2013 emptying the benefit.<\/p>\n\n\n\n
In this other case, the minister highlighted, the opposite would occur. \u201cIf every time an exemption or reduction of the ICMS base is granted by the State, the Union will automatically be obliged to reduce the company's Income Tax and CSLL, the logic is reversed.\u201d<\/p>\n\n\n\n
Campbell Marques also said that in tax reductions and exemptions, the taxpayer is simply no longer having an outgoing expense. He treated it as a \u201cnegative quantity\u201d, while presumed credits, which, in theory, constitute revenue, should be considered \u201cpositive quantities\u201d.<\/p>\n\n\n\n
Campbell Marques' understanding was shared by all the ministers on the panel. They decided to return the case for further analysis by the court of origin. The taxpayer claimed that there was an omission in the judgment of the second instance of the Court because the judges did not comment on the application of Law No. 12,973 of 2014 \u2013 which deals with investment subsidies.<\/p>\n\n\n\n
In March, a taxpayer obtained a decision to exclude \u201cgains\u201d related to tax benefits in the 1st Panel of the STJ. In this case, however, there was a counterpart. The company agreed with the State of Santa Catarina to pay ICMS in installments, with differentiated interest rates, during the period of expansion of its factories (REsp 1222547).<\/p>\n\n\n\n