MP 1185/22 revoked the legal provision that equated operating and investment subsidies, as well as allowed the deduction of ICMS tax benefits from the calculation bases of IRPJ, CSLL, PIS and COFINS.
The government has touted the measure as beneficial, claiming it granted taxpayers credits. However, a closer look at the text of the provisional measure reveals a different conclusion.
Firstly, with this measure, ICMS tax benefits will be taxed by IRPJ, CSLL, PIS and COFINS, which will increase the tax burden on taxpayers who have the respective tax benefits and incentives.
Another drawback of the legislation is that the credit granted can only be used after the taxpayer’s investment is completed. In this regard, it’s no surprise that implementing this type of project, such as an industrial project, often takes 5 to 10 years.
Furthermore, if the taxpayer is unable to use the credit, given the absence of federal debts, the request for reimbursement can only be made after a long four years.
It should also be noted that the credit granted by the MP can only be reimbursed/compensated after prior qualification with the Federal Revenue Service, that is, yet another bureaucracy that will certainly delay the use of the “benefit”.
As can be seen, if actually approved by the National Congress, the changes promoted by MP 1185/22 are not favorable to taxpayers who have ICMS tax benefits.
Finally, it is worth mentioning that, in our understanding, the changes introduced by the MP do not affect those taxpayers who have presumed ICMS credits, at least with regard to the taxation of these amounts by IRPJ and CSLL, since, according to the STJ ruling that was widely reported in the press, the taxation of these credits violates, among other things, the federative pact.
