The First Section of the Superior Court of Justice (STJ) decided, in repetitive appeals No. 1.945.110/RS and 1.987.158/SC (Theme 1.182), held on April 26, that tax benefits related to the State Value-Added Tax on Circulation of Goods and Services (ICMS), such as reduction in the calculation base, decrease in tax rate, exemption, deferral, among others, cannot be excluded from the calculation base of Corporate Income Tax (IRPJ) and the Social Contribution on Net Profits (CSLL), except when the requirements provided in Article 10 of Complementary Law 160/2017 and Article 30 of Law 12.973/2014 are met.
The panel established three repetitive theses, settling the disagreement between the First Panel and the Second Panel of the STJ. The theses establish that it is impossible to exclude ICMS-related tax benefits from the IRPJ and CSLL calculation bases, except when the requirements provided by law are met; no demonstration of granting the benefit as an incentive for the implementation or expansion of economic ventures should be required for the exclusion of these tax benefits from the calculation base; and 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 venture does not prevent the Federal Revenue from assessing IRPJ and CSLL if it is verified in a tax audit that the amounts derived from the tax benefit were used for a purpose unrelated to ensuring the viability of the economic venture.
The ministers also emphasized that the understanding established in EREsp 1.517.492, which excluded the ICMS presumptive credit from the IRPJ and CSLL calculation bases, does not apply to these benefits subject to this judgment.
The rapporteur of the cases, Minister Benedito Gonçalves, highlighted that the exclusion of tax benefits from the calculation bases of federal taxes depends on compliance with the conditions and requirements provided by law and made a distinction between the ICMS presumptive credit and other benefits related to the tax. According to the rapporteur, granting an exemption will not have the same effect on the ICMS incidence chain as granting presumptive credit.
The minister pointed out that it is still possible for the taxpayer to follow the provisions of Article 10 of Complementary Law 160/2017, which classified tax exemptions as investment subsidies that can be excluded from the IRPJ and CSLL calculation bases, as provided in Article 30 of Law 12.973/2014.