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The 1st Section of the Superior Court of Justice has submitted Special Appeals No. 2.221.127/PE, No. 2.171.374/RS, No. 2.188.361/RS and No. 2.188.282/PR to the repetitive appeals procedure (Theme No. 1,416/STJ), through which the Court will determine whether presumed credits of the Tax on the Circulation of Goods and Services (ICMS), granted by the States as a tax incentive to legal entities, may be excluded from the calculation bases of the Corporate Income Tax (IRPJ) and the Social Contribution on Net Profits (CSLL), under the legal regimes both prior and subsequent to Law No. 14,789/2023.

The matter had already been previously examined by the same 1st Section in the judgment of EREsp No. 1.517.492/PR, on which occasion it was established that presumed ICMS credits could not be considered taxable profit for purposes of IRPJ and CSLL assessment, under penalty of violating the federative pact. Subsequently, in the judgment of Theme No. 1,182, also under the repetitive appeals system, the panel maintained this understanding specifically with respect to presumed credits, distinguishing them from other tax incentives granted by the States, such as reductions in the tax base, deferrals and reduced tax rates.

However, following the enactment of Law No. 14,789/2023, which instituted a new regime for the enjoyment of tax benefits as from January 1, 2024, the National Treasury began to argue that the understanding consolidated by the Superior Court of Justice could no longer prevail, maintaining that the exclusion of presumed ICMS credits from the IRPJ and CSLL calculation bases should be limited to the period prior to December 31, 2023.

In light of this scenario, the 1st Section decided to submit the controversy to the repetitive appeals procedure, with the purpose of providing greater legal certainty on the matter and defining the interpretation applicable both before and after the new legislation. The recent case law history of the panels comprising the 1st Section indicates a tendency to maintain the previously established understanding, rejecting the thesis advanced by the National Treasury.

The legal thesis to be established will have binding effect and must be observed by lower courts in cases addressing the same matter, ensuring uniformity, legal certainty and equality in the application of the law. It is therefore advisable for taxpayers to consider filing legal actions in order to safeguard their rights and anticipate any potential modulation that may restrict the effects of the decision to be rendered by the Superior Court of Justice on the matter.

The Tax Law team at BRZ Advogados remains available in case of any questions.