Under Law nº 14.789/2023, ICMS tax benefits are now, as a general rule, subject to IRPJ and CSLL taxation. The legislation now permits the calculation of a tax credit provided that specific requirements are met.
The Superior Court of Justice (STJ) had been adopting a specific interpretation regarding the presumed ICMS credit. The Court recognized that these amounts should not be included in the IRPJ and CSLL tax bases. This position took into account the specific nature of the benefit and the preservation of the federal pact.
The legislative change sparked controversy over the application of this interpretation. For this reason, the Superior Court of Justice referred Issue nº 1416 for adjudication under the repetitive appeals system.
The decision will define the application of Law nº 14.789/2023 to presumed ICMS credits.
Given this scenario, we highlight 3 key points regarding this issue:
1. The Tax Benefit in Question: The issue to be decided specifically concerns the presumed ICMS credit and its taxation by the federal government through the IRPJ and CSLL. We argue that, since the presumed credit does not represent the company’s own profit or revenue, it should not be included in the tax base for these taxes. It is important to note that other ICMS tax benefits, such as deferral, zero tax rates, and exemptions, are not included in this debate. Therefore, it is essential that companies benefiting from the presumed credit identify how it is being treated. It must be verified whether, in the calculation of IRPJ and CSLL, this benefit is being included in the respective tax bases.
2. Position of the Courts to Date: Although the STJ’s case law has been favorable to taxpayers, the absence of a qualified precedent under the repetitive appeals system left room for uncertainty regarding the application of this interpretation. Only taxpayers who filed lawsuits and obtained final and binding favorable rulings had greater certainty regarding the right to exclude the presumed ICMS credit from the IRPJ and CSLL tax bases.
Thus, taxpayers who adopted this treatment without judicial support remained subject to challenges and potential assessments by the tax authorities.
3. The Effects of Law No. 14,789/2023: Law nº 14.789/2023 established new rules for the federal government’s treatment of ICMS tax benefits granted by the states, particularly for the purposes of calculating IRPJ and CSLL. Under the new system, these benefits are now subject to taxation and are no longer automatically excluded from the tax base. In contrast, the legislation provides for the possibility of claiming tax credits, provided that specific requirements are met, such as prior authorization and a link to investments.
In practice, there has been a shift in approach. Previously, the direct exclusion of these benefits from the tax base was the subject of debate. With the new legislation, the system has shifted to a taxation model that allows for offsetting through tax credits.
Furthermore, the law makes no express distinction between the different types of ICMS tax benefits. This broad treatment has raised questions regarding the classification of the presumed credit, which has its own characteristics and had previously received specific treatment under STJ case law.
Therefore, companies that use the presumed ICMS credit should review the tax treatment applied to the benefit and monitor developments regarding Topic nº 1416. At this time, it is important to consider filing a lawsuit to safeguard the right to exclude these amounts from the IRPJ and CSLL tax bases.
