Carf nullifies IRPJ and CSLL incidence on presumed ICMS credits

Reproduction: Disclosure/Carf

In a recent judgment, the 1st Panel of the Superior Chamber of the Administrative Council of Tax Appeals (Carf) made a decision that excludes the incidence of legal entity tax (IRPJ) and social contribution on net income (CSLL) on the presumed ICMS credits. This position is aligned with the understanding previously established by the Superior Court of Justice (STJ) in theme 1.182, which ensures the non -incidence of these federal taxes on such tax benefits.

The case under consideration involved presumed ICMS credits granted by the State of Paraíba, as part of an incentive for the installation of a distribution center in João Pessoa and the creation of 100 direct jobs within a period of two years. The relevance of this fiscal incentive was in its ability to foster regional economic development, encouraging investments and job generation.

Luiz Tadeu Matosinho Machado, rapporteur of the case, grounded his decision on STJ, specifically repetitive appeals 1,945,110 and 1,987,158 judged in 2023, which consolidated the non -tax benefits such as deferring and reduction of tax rate ICMS. Although these cases did not specifically deal with presumed credits, the STJ, through EREsp 1,517,492, had already spoken on the issue, stating that the taxation of presumed ICMS credits by IRPJ and CSLL constitutes an offense to the federative pact .

This interpretation reflected a broader understanding that the tax benefits granted by the states, under specific conditions and in search of economic development objectives, should not be annulled by the incidence of federal taxes. In addition, the decision highlighted the importance of observing the counterparts involved in granting these benefits, a relevant aspect for the validity of the incentive and the legal certainty of the beneficiary companies.

The votes of Fernando Brasil de Oliveira Pinto and Maria Carolina Maldonado Mendonça Kraljevic, who accompanied the rapporteur, reinforced the position that, although EREsp 1,517,492 was not tried as repetitive, their principles must be considered by Carf when analyzing cases involving state tax benefits with specific counterparts.

Process 10600.720042/2014-69

Source: https://www.jota.info/tributos-e-e-ex/tributario/camara-superior-do-carf-derruba-tributation-de-press-pressed-de-acms-03052024?non-Bela = 1

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