The 1st Section of the Superior Court of Justice (STJ) affected Special Appeals (REsp) No. 1,945,110 and 1,987,158 (repetitive procedure – Topic No. 1,182) to judge the definition on the possibility of excluding tax benefits related to ICMS – such as reduction of calculation basis, reduction of rate, exemption, immunity, deferral, among others – from the calculation basis of IRPJ and CSLL (as an extension of the understanding already established in EREsp No. 1,517,492, which excluded the presumed ICMS credit from the calculation bases of IRPJ and CSLL).

Due to the impact, the STJ collegiate determined the suspension of the processing of all proceedings, individual or collective, that deal with the same subject matter.

Justice Benedito Gonçalves, the rapporteur, noted that the thesis began to be discussed in the courts after the judgment of the Divergence Embargoes in the Special Appeal (EREsp) No. 1,517,492, which ruled that the presumed ICMS credit is not part of the calculation basis for IRPJ and CSLL. Due to the similarity of the discussion, the rapporteur decided to affect the issue on the procedure for repetitive appeals, being cataloged as Theme No. 1,182, deciding this time on the reduction of the calculation basis, reduction of the tax rate, exemption, deferral of payment, among others.

Considering that tax benefits, in general, consist of incentives to promote certain economic sectors and business activities, they could not be included in the concept of increase in assets or revenue, that is, in addition to not being incorporated into the taxpayer's assets, they do not constitute income/profit, the taxable basis for IRPJ and CSLL.

Due to the similarity with the discussion on presumed credits, it is expected that the Superior Court of Justice will rule in a manner consistent with its own jurisprudence, removing tax benefits from the calculation basis of IRPJ and CSLL.