On May 10, 2023, the 1st Section of the Superior Court of Justice (STJ), decided in the trial of Theme No. 1,008 of Repetitive Appeals, that ICMS makes up the calculation basis for IRPJ and CSLL, when determined using the presumed profit system.
The trial, which had begun on October 26, 2022, was related to Theme No. 69 of General Repercussion, when the Supreme Federal Court decided that ICMS does not form the basis for calculating PIS and COFINS.
In the calculation using the presumed profit regime, for purposes of levying IRPJ and CSLL, the gross revenue defined in art. 12 of Decree-Law No. 1,598/1977 is the calculation basis for the presumption of taxable profit, as set forth in item I of article 25 of Law No. 9,430/1996. Although the legal provisions do not allow the exclusion of ICMS on such amounts in the presumed profit, the legal challenge brought in Theme No. 69 of General Repercussion of the Supreme Federal Court, which excluded ICMS from the calculation basis of PIS and COFINS on the grounds that the ICMS highlighted in the invoice does not constitute revenue or turnover, caused this thesis to also be discussed in the calculation of presumed profit, whose calculation basis is composed of gross revenue.
The rapporteur, Justice Regina Helena Costa, voted to exclude ICMS from the tax base, precisely because the tax is not definitively incorporated into the taxpayer's assets, confirming the position adopted in Theme No. 69/STF. The Justice also stated that “revenue cannot be one thing for one topic and have another content for another topic”, seeking coherence between the judicial decisions adopted by the Superior Courts.
However, the other judges voted, by majority, to maintain the tax as the basis for calculating the presumption of taxable income. According to the vote of Minister Gurgel de Faria, the adoption of gross revenue would be intended to prevent deductions, including taxes, costs of goods or services.
To justify the vote, he considered that the exclusion of ICMS from the PIS and COFINS calculation basis could not be applied in the case of tax benefits, and therefore could not be applicable to presumed profit. Finally, he argued that the exclusion of ICMS could allow a combination of presumed profit and real profit, subverting the logic of each calculation regime.
The STF, when judging the Procedural Appeal in Extraordinary Appeal No. 1,203,686, denied the existence of general repercussion, stating that the thesis regarding IRPJ and CSLL determined in the presumed profit had an infraconstitutional nature. Thus, it is expected that the matter will be definitively decided by the STJ, unless there is a change of understanding. Finally, it is worth noting that the decision shows inconsistencies with the understanding adopted on other occasions by the Supreme Federal Court in the judgment of the exclusion of ICMS from the calculation basis of PIS and COFINS, evidencing a lack of uniformity between the jurisprudential positions of the higher courts.
