The 2nd Panel of the Superior Court of Justice (STJ) has recently held in a Special Appeal (Special Appeal No. 1.605.245/PR) that the presumed credit of the sales tax (ICMS) is not to be included in the calculation of the corporate income tax IRPJ and the social contribution CSL.
The appeal in question was filed by the federal government based on a complementary law (Complementary Law No. 160/2017) that defines that all tax incentives and benefits related to the ICMS are classified as “investment subsidy”. What happens is that investment subsidies can only be excluded from the calculation of the corporate income tax IRPJ and social security CSL if certain requirements are met.
However, in this case, the STJ held that the ICMS presumed credit was to be excluded from the IRPJ and CSL calculation, alleging a violation to the federation. The opinion, however, did not go into the discussion on whether such tax benefit is to be considered “investment subsidy”. The decision was unanimous.
Our tax practice group is ready to discuss the subject in detail.
