The Superior Court of Justice put an end to the taxpayers’ claim to exclude any and all ICMS tax benefits from the IRPJ and CSLL bases, through the judgment of Theme 1,182 in the context of repetitive appeals.
According to the aforementioned Court, only ICMS tax benefits that meet the requirements set forth in the legislation, notably art. 10 of Complementary Law 160/2017 and article 30 of Law 12.973/2014, will be eligible for deduction from the IRPJ and CSLL bases. In other words, the Court recognized that only investment subsidies that have been granted as an incentive for the implementation or expansion of economic enterprises, even in the form of a reduction in the tax base or exemption, may be deducted from IRPJ and CSLL.
Therefore, exemptions and reductions in the tax base granted indiscriminately, which are not considered as investment subsidies because they are not linked to the implementation or expansion of economic ventures, cannot be deducted from IRPJ and CSLL.
Now, it will be up to taxpayers to verify the “account to be paid” resulting from the judgment of Topic 1.182. It should be noted that those who recorded the benefits now considered undue as subsidies at the time of the events, that is, without rectifying their accounting records and ancillary tax obligations, may benefit from the statute of limitations. On the other hand, those who have rectified ancillary obligations to record the subsidies now considered undue have reopened the period for inspection by the Federal Tax Authorities.
The media has considered the creation of a new transaction program to allow the regularization of taxes due due to the definition of Theme 1.182.
