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Taxation of ICMS benefits by the Federal Government may be judged with binding effects by the Superior Court of Justice

05/07/2022

The inclusion of ICMS benefits in the tax basis of Corporate Income Taxes (“IRPJ and CSLL”) has been object of constant debate, both in the administrative sphere (within the scope of the Administrative Council of Tax Appeals – “CARF”) and in the judiciary.

In 2017, the First Section of the Superior Court of Justice (“STJ”) consolidated the understanding that allowed the exclusion of presumed credits of ICMS from the tax basis of IRPJ and CSLL by judging the Special Appeal No. 1.517.492/PR.

However, in 2022 the first and second panels of the STJ have issued different decisions on the matter, involving deferral, exemption and reduction of the ICMS tax basis. For that reason, the Management Committee of Precedent and Collective Actions of the STJ, presided by Minister Paulo de Tarso Sanseverino, has indicated two Special Appeals on the matter to include under the repetitive system of judgement (Special Appeals No. 1.945.110/RS and No. 1.987.158/SC).

The legal controversy to be considered by the Court was defined as follows: “to define if it is possible to exclude tax benefits related to ICMS – such as tax basis reduction, tax rate reduction, exemption, deferral, among others – from the IRPJ and CSLL calculation basis“.

According to the information verified by the Committee, there are currently approximately 391 monocratic decisions and 55 court decisions issued by the First and Second Chambers of the STJ on the matter, which is why such Special Appeals would be representative of controversy, liable to be included under the repetitive system of judgement.

The proceedings records were forwarded to the Public Prosecutor Office in order to express its opinion on the admissibility of the Special Appeals under the repetitive system of judgement.

If the inclusion of these cases in the repetitive system is admitted, the understanding to be issued by the STJ in these Special Appeals will have binding effect over ordinary courts.

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