Companies that benefit from presumed ICMS credits should be particularly vigilant.
The issue of excluding these amounts from the IRPJ and CSLL tax bases has returned to the agenda and will be decided by the Superior Court of Justice – STJ (Case No. 1416), which is expected to establish a uniform interpretation to be followed by all levels of the judiciary.
Although there have been repeated decisions favorable to taxpayers in recent years, this right has never been definitively secured. With the enactment of Law No. 14,789/2023, the debate over federal taxation of ICMS tax benefits has been reopened. The new legislation altered the previous system by establishing that these incentives, as a rule, will now be taxed under the IRPJ and CSLL, while allowing, in return, the calculation of tax credits subject to compliance with specific requirements.
Given this scenario, we highlight 3 key points regarding the issue:
1. The tax benefit in question: The issue to be adjudicated specifically concerns the presumed ICMS credit and its taxation by the Federal Government through IRPJ and CSLL. We argue that the presumed credit, as it does not represent profit or revenue for the company, 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 rate, and exemption, are not included in this debate. Therefore, it is essential that companies benefiting from the presumed credit identify how it is being treated, verifying 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: Legal certainty up to that point was limited. Only taxpayers who filed lawsuits and obtained final and binding favorable decisions were guaranteed the right to exclude the presumed ICMS credit from the IRPJ and CSLL tax bases.
Even though the STJ’s interpretation of the matter was largely favorable to taxpayers, these decisions were binding only on the parties involved in the proceedings. Thus, taxpayers who adopted the measure without judicial support are subject to challenges and potential assessments by the tax authorities.
3. The effects of Law No. 14,789/2023: Law No. 14,789/2023 establishes 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 this legislation, such benefits are now, as a general rule, subject to taxation and are no longer automatically excluded from the tax base. On the other hand, the law provides for the possibility of calculating tax credits, provided that specific requirements are met, such as prior authorization and linkage to investments.
In practice, the new system has altered the logic previously adopted: instead of directly excluding the benefits from the tax base, a model has been adopted in which there is initial taxation followed by possible offsetting.
Furthermore, the law makes no express distinction between the different types of ICMS tax benefits, treating them comprehensively. This has created uncertainty regarding the specific classification of the presumed credit, which, according to the jurisprudence of the STJ, has its own distinct nature and should not be taxed by the Federal Government.
Therefore, companies that benefit from the presumed ICMS credit must urgently assess their risks and opportunities, especially regarding the filing of legal actions to protect their rights. The adjudication of this issue under the repetitive appeals system will play a decisive role in determining whether the previous understanding will be preserved, limited, or overturned, and to what extent Law No. 14,789/2023 may take effect.
