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The 1st Section of the Superior Court of Justice has submitted Special Appeals No. 2.238.885/SP and No. 2.238.889/DF to the repetitive appeals procedure (Theme No. 1,415/STJ). The purpose is to determine whether, in the calculation of Corporate Income Tax (IRPJ) and the Social Contribution on Net Profits (CSLL) by electric power transmission concessionaires, the coefficients applicable to construction, recovery, renovation, expansion or infrastructure improvement activities linked to concession agreements may be applied autonomously.

The controversy involves the interpretation of provisions introduced by Law No. 12,973/2014 and Complementary Law No. 167/2019, which amended Law No. 9,249/1995.

On one side, the National Treasury argues that revenues related to the construction, expansion or improvement of infrastructure should be taxed using the higher presumed profit coefficient (32%), as they qualify as construction services linked to concession agreements.

On the other side, the concessionaires maintain that their principal activity is the provision of electric power transmission services, while the construction of infrastructure constitutes an ancillary activity necessary for the performance of the public service. Accordingly, they argue that the ordinary presumed profit coefficients (8% for IRPJ and 12% for CSLL) should apply to the revenues arising from their principal activity.

The legal thesis to be established will have binding effect and must be observed by lower courts in similar cases, contributing to greater uniformity and legal certainty.

In light of this scenario, it is advisable for taxpayers to assess the adoption of legal measures aimed at safeguarding their rights, including in consideration of any potential modulation of the effects of the decision to be rendered by the Superior Court of Justice.