In a remarkable decision by the Superior Court of Justice (STJ), it was established that presumed ICMS credits should not be included in the IRPJ and CSLL calculation bases. This decision, made by the First Section when it ruled on a motion for divergence, highlights a coherent interpretation of federal principles, which directly influences the tax planning of Brazilian companies.
According to the STJ, taxing amounts corresponding to tax incentives would violate the principles of cooperation and equality between states. This perspective offers companies a clearer basis for tax and financial planning, potentially reducing tax obligations.
Additionally, the STJ has consistently ruled that the changes to article 30 of Law No. 12,973/2014, introduced by Complementary Law 160/2017, do not change this understanding, i.e. presumed ICMS credits should not be included in the IRPJ and CSLL calculation bases.
However, the Brazilian Federal Revenue Service (RFB), through Answer to Advance Tax Ruling Request No. 253, published on October 25, 2023, opted not to immediately apply the STJ’s understanding. The RFB argues that the STJ’s decisions become binding on the Brazilian Federal Revenue Service only after a formal manifestation by the Attorney General’s Office of the National Treasury.
In this way, the RFB maintains its understanding that presumed credits can be included in the IRPJ and CSLL base.
This highlights the need for companies to go to court to ensure the STJ’s understanding of presumed credits, which demonstrates the importance of specialized legal advice.
In conclusion, the STJ’s decision represents an important milestone for Brazilian tax law and offers an opportunity for companies to re-evaluate their tax strategies. Keeping abreast of these developments and understanding their implications is crucial for success and financial sustainability in the Brazilian corporate environment.
If you have any questions on the subject, our tax team is available to answer them.
