By: Guilherme Martins
The Superior Court of Justice (STJ), in a judgment held by its 1st Panel, decided that gains obtained by a company as a result of a tax benefit granted by a state economic development program should not be included in the calculation basis of Corporate Income Tax (IRPJ) and Social Contribution on Net Profits (CSLL).
The Court’s decision was rendered in REsp No. 1.222..547 and granted the special appeal filed by a soft drink company. In the case at hand, the company had joined the Santa Catarina Company Development Program (Prodec), established by the State of Santa Catarina to encourage the expansion of industrial enterprises, and which provides for the benefit of deferring the payment of a percentage of the amount due monthly for ICMS. This amount would be paid later, without monetary correction and with annual interest of 4%.
According to the Brazilian Federal Revenue Service (RFB), the amounts should be included in the calculation basis of the Corporate Income Tax (IRPJ) and the Social Contribution on Net Profits (CSLL), since in their view there is no amount waiver. The Regional Federal Court of the 4th Region agreed with the thesis of the Revenue, however, this understanding was reformed in a STJ unanimous vote.
The rapporteur, Minister Regina Helena Costa, applied precedents from similar cases to conclude that it is illegal to include gains obtained through tax benefits in the calculation basis of the IRPJ and CSLL.
According to the Justice, the attempt to tax these amounts – which the taxpayer no longer spends due to tax incentives granted by the state – not only demonstrates a contradictory position by the National Treasury, but also violates the federative pact established by the Federal Constitution.
In the Rapporteur words, it would be allowing the Union to “obliquely withdraw a tax incentive that a member state has granted, in the exercise of its tax competence”.