By Camila Friaça

The 1st Section of the STJ established the understanding that the presumed IPI credit, provided for in article 1 of Law No. 9,363/1996, is part of the calculation basis for IRPJ and CSLL. According to the winning vote of Justice Og Fernandes in the judgment of EResp No. 1,210,941, the IPI credit, by its very nature, promotes gains for companies operating in the benefited sector and reduces the volume of tax obligations, and is therefore considered a tax benefit that reduces the tax burden, which reflects an indirect increase in the taxpayer's taxable income.

In his vote, Minister Og Fernandes states that the case in question is different from the issue regarding the inclusion of ICMS in the calculation basis for PIS and COFINS, since the inclusion of the presumed IPI credit in the calculation basis for taxes levied on profit is different from the inclusion of taxes in the calculation basis for other taxes levied on revenue.

Therefore, the 1st Section understood that the amounts refunded by the Union to exporting companies as presumed IPI credits must be included in the calculation basis for IRPJ and CSLL, ratifying the understanding adopted by the 2nd Panel of the Superior Court of Justice.

The Mazzucco & Mello Advogados tax team is available to provide any clarification on this topic.