Taxpayers and the National Treasury still disagree as to the possibility of including presumed ICMS credits in the calculation of the IRPJ (corporate income tax) and the CSLL (social contribution on net profit). This is so even after a decision by the 1st Section of the Superior Court of Justice (STJ) and the enactment of a complementary law on the matter. Last week, Cia Hering prevailed before the Court’s 2nd Panel in a case on the subject.
Unanimously, the understanding rendered by the 1st Section in 2017 (REsp No. 1605245) was applied. In the view of the Section’s justices, the tax incentive cannot be characterized as profit, which is the calculation base of the IRPJ and the CSLL (EREsp No. 1517492). The Treasury had requested the application of Complementary Law No. 160, which took effect 15 days after the 1st Section’s decision. The law states that ICMS incentives are “investment subventions.” For this reason, the presumed credits of the tax do not form part of the calculation of the IRPJ and the CSLL.
The rule further provides for application to ongoing cases, provided that the companies have recorded the incentives in their accounting as “investment subvention.”
In the case decided by the 2nd Panel, Cia Hering sought to make use of credits from the State of Goiás generated in the sale of clothing in order to offset ICMS debts. This was because the company recorded the amounts as “funding subvention.” The Treasury argued that, under the law, since the credits were recorded as funding subvention, they form part of the calculation base of the IRPJ and the CSLL.
In the oral argument, the National Treasury attorney Amanda de Souza recalled that Complementary Law 160 defined the presumed ICMS credit as an investment subvention. And that the law set certain requirements, such as recognition in the accounting – which does not occur in the specific case. “It was a law that came to put the house in order,” she said.
At the rapporteur’s request, the lawyer representing Cia Hering in the case, Anete Maciel Medeiros, of the firm Gaia Silva Gaede Advogados, did not deliver an oral argument because the opinion contained the same understanding as the company on the matter. In his opinion, the rapporteur, Justice Mauro Campbell Marques, stated that the 1st Section’s decision is based on the federative pact. If the Union taxes an incentive granted by the States, it will be impairing that benefit. For this reason, the credit was recognized in the specific case.
The rapporteur stated that the adjudication of the matter in the 1st Section started from premises different from the discussion of funding or investment. But he applied the STJ’s decision. After the judgment, the attorney told Valor that she will analyze the possibility of filing an appeal (motion for clarification). According to her, the application of the 1st Section’s precedent ends up emptying paragraph 5 of article 9 of Complementary Law 160, which covers ongoing cases.
However, according to Anete, there is no impediment to a new case being decided on the basis of the complementary law, because the matter was decided by the 1st Section when the rule did not yet exist.
Source: Valor (Beatriz Olivon) – 06/27/2019
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