By: Guilherme Martins and João Pedro Gimenes

The STJ should begin, next Wednesday (04/26), the trial of Theme nº 1.182, aiming “define whether it is possible to exclude tax benefits related to ICMS – such as reduction of the calculation base, reduction of the tax rate, exemption, immunity, deferral, among others – from the calculation base of IRPJ and CSLL.”

It is worth remembering that in 2017, during the trial of ERESP 1,517,492/PR, the 1st Section of the STJ concluded that the requirement of IRPJ and CSLL on presumed ICMS credits, granted as a tax incentive, was illegal.

The rationale used at that time – and which our reading fully applies to Topic No. 1,182 – was that allowing such gains to be considered as taxable income would enable the Union to indirectly withdraw the tax incentive granted by the states, which would lead to the emptying or reduction of the benefit. The understanding of Justice Regina Helena Costa prevailed, by seven votes to two.

In our view, the chances of extending the application of the understanding established during the judgment of ERESP 1,517,492/PR to Theme No. 1,182 are high. Taking into account the possibility of modulating the effects of a possible decision favorable to taxpayers, we recommend that those who have not yet questioned the issue in court do so before the start of the judgment by the STJ, which, it is repeated, is scheduled for April 26, 2023.

With the collaboration of Davi Matos