ICMS forms the basis for calculating Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL), when calculated using the presumed profit system.<\/p>\n\n\n\n
This was the thesis approved by a majority vote by the 1st Section of the Superior Court of Justice, in a trial concluded on the morning of Wednesday (10\/5). The issue was judged in repetitive appeals and must be followed by the ordinary courts.<\/p>\n\n\n\n
The case is one of the so-called \u201csubsidiary theses\u201d of the \u201cthesis of the century\u201d established by the Supreme Federal Court in 2017, when it defined that ICMS does not form the basis for calculating PIS and Cofins. The issue, which had its effects modulated in 2021, has unfolded in several other discussions involving the inclusion of taxes in the basis for calculating other taxes.<\/p>\n\n\n\n
The dissenting vote of Justice Gurgel de Faria prevailed, adopting the line according to which the \u201cthesis of the century\u201d did not definitively exclude ICMS from the constitutional concept of revenue for any and all tax purposes. The majority was formed by Justices Herman Benjamin, Mauro Campbell Marques, Benedito Gon\u00e7alves and Assusete Magalh\u00e3es.<\/p>\n\n\n\n
Justice Regina Helena Costa was defeated, understanding that the STF's position would be extendable to the case in question because the ICMS amount is not incorporated into the taxpayer's assets, being a mere cash inflow. Therefore, it would not be used to integrate the IRPJ and CSLL basis.<\/p>\n\n\n\n
Non-automatic application<\/p>\n\n\n\n
As shown by the online magazine Consultor Jur\u00eddico, the \u201cthesis of the century\u201d established by the STF has been divided into at least ten \u201csubsidiary theses\u201d, in which the taxpayer seeks to extend the same reason for deciding to exclude the incidence of taxes in the calculation basis of other taxes.<\/p>\n\n\n\n
The problem is that the STF itself, when judging two of them, has already imposed a relevant differentiation: in cases where the tax is treated as a tax benefit, removing it from the calculation basis of other taxes would imply a third form of taxation not foreseen by the legislator and doubly beneficial for the taxpayer.<\/p>\n\n\n\n
This indication was made when the Supreme Court understood that it was constitutional to include ICMS and ISS in the calculation basis of the Social Security Contribution on Gross Revenue (CPRB). This Wednesday, the 1st Section followed the same line.<\/p>\n\n\n\n
In the winning vote, Minister Gurgel de Faria pointed out that the STF itself indicated that the ICMS was not automatically excluded from the constitutional concept of revenue for all tax purposes.<\/p>\n\n\n\n
He highlighted that the reason for deciding the \u201cthesis of the century\u201d does not apply when there is an optional tax regime. Thus, the fact that the taxpayer understands that collecting ICMS through the presumed profit system does not authorize him to exclude it from the IRPJ and CSLL calculation basis, expanding the benefit.<\/p>\n\n\n\n
\u201cTherefore, it is not possible to combine a favored regime with characteristics of the general tax regime and create a third type of tax that is even more beneficial,\u201d explained Minister Gurgel. \u201cFor PIS and Cofins contributions, revenue constitutes the calculation basis itself. For IRPJ and CSLL, it represents only a tax parameter, which is another relevant distinction.\u201d<\/p>\n\n\n\n
In the dissenting vote, in turn, Minister Regina Helena Costa concluded that the value of ICMS in the presumed profit system does not result in a definitive increase in the taxpayer's assets and opposed the change in the concept of revenue depending on the taxation regime - whether by real or presumed profit.<\/p>\n\n\n\n
According to lawyer Vinicius Caccavali, from VBSO Advogados, there was an expectation that the STJ could exclude the incidence of ICMS from the calculation basis of other taxes, but the line followed was different: whoever wants to, can calculate the revenue, which is the calculation basis for IRPJ and CSLL, based on real profit. \u201cCalculating ICMS based on presumed profit is not a tax benefit,\u201d he pointed out.<\/p>\n\n\n\n
REsp 1,767,631<\/p>\n\n\n\n
REsp 1,772,470<\/p>\n\n\n\n