By: Guilherme Martins
Most of the Supreme Court (STF) ministers agreed in favor of non-incidence of IRPJ and CSLL on the Selic rate updated values received due to repeated overpaid tax, restitution, and compensation for unduly paid or higher tax credits.
In the judgment of RE 1.063.187, with recognized general repercussion (Topic 962), the case reporter, Minister Dias Toffoli, pointed out in his vote that “the interest on arrears is not pertinent to income tax and CSLL, because they are aimed at recomposing effective losses, decreases, not implying an increase in the creditor’s assets”.
The minister also pointed out that the interest on repeated undue debit rests on emerging damage and not on lost profits. In this case, there is no need to talk about IRPJ and CSLL charges, since there is no asset increase.
The understanding of Dias Toffoli followed the same line of reasoning expressed in a recent judgment on a similar matter, of which he was also rapporteur. It refers to RE 855.091, which decided in favor of non-incidence of income tax on late interest received in the event of late of salary payment. On that occasion, Toffoli understood that the interest on labor funds is intended to repurchase the assets, and not to add it, whereby the incidence of income tax is not justified.
With the STF vote on Topic 962, the following thesis was adopted: “the incidence of the IRPJ and CSLL on values related to the Selic rate received due to the repetition of undue tax is unconstitutional.” As a result, there has been a change in the legal understanding, especially as regards the Superior Court of Justice (STJ) that holds a position that favors the tax authorities, in the sense that the interest and monetary correction have an asset increase nature and should therefore be taxed.
It remains to be seen whether the STF will modulate the effects of the decision.