The justices of the Superior Court of Justice (STJ) have decided, by a majority of five votes to one, that the Tax on Circulation of Goods and Services (ICMS) must be included in the calculation of Corporate Income Tax (IRPJ) and the Contribution for Social Security on Net Income (CSLL) for companies adopting the Presumed Profit regime.
In the judgment, the dissent presented by Minister Gurgel de Faria prevailed. According to the minister, the position of the Supreme Federal Court (STF) in Theme 69 (exclusion of ICMS from the bases of PIS and Cofins) applies only to those contributions and cannot be extended to IRPJ and CSLL calculated under the presumed profit regime.
In his vote, Gurgel de Faria emphasized that the STF ruled on the concepts of revenue and billing in the Federal Constitution for the purposes of PIS and Cofins incidence. However, in the case of IRPJ and CSLL calculated under the presumed profit regime, the minister argued that infranational legislation supports the inclusion of ICMS in the calculation base. He also noted that opting for the presumed profit implies taxation on gross revenue, while in actual profit, companies’ accounting profit is calculated.
Furthermore, he argued that the presumed profit regime does not allow for the same exclusions from the calculation base permitted in the actual profit regime. He proposed the following thesis: “ICMS is part of the calculation base of IRPJ and CSLL when calculated under the presumed profit regime.”
Therefore, if the taxpayer intends to deduct expenses from the calculation base of IRPJ and CSLL, “they must opt for the actual profit, which allows for this possibility.” He also argued that Theme 1,048 (exclusion of ICMS from the CPRB base), decided by the STF in 2021, is more suitable for the situation of presumed profit regime taxpayers than Theme 69, established in 2017.
Most of the ministers agreed with this understanding, except for the rapporteur of the case, Minister Regina Helena Costa, who was in the minority. According to the judge, ICMS, even in the presumed profit regime, does not constitute gross revenue and does not permanently become part of a company’s assets; it is merely an amount transferred to the public coffers. Therefore, it should not be subject to IRPJ and CSLL taxation.
Regina Helena Costa also proposed that the decision should have effects from the publication of the judgment, while the winning vote did not provide for this modulation.