The Answers to Advance Tax Ruling Requests 99010/2021 was published in the Official Gazette of the Union today (Nov. 16), reaffirming the understanding of the Federal Revenue Service that, as of Complementary Law 160 of 2017, tax or financial-fiscal incentives and benefits related to the ICMS tax, granted by states and the Federal District and considered investment subsidies under article 30, paragraph 4, of Law 12,973 of 2014, may no longer be computed in the determination of taxable income and in the determination of adjusted income, provided that the requirements and conditions imposed by article 30 of Law 12,973 of 2014 are met,, among which, the need that they have been granted as a stimulus to the implementation or expansion of economic enterprises.
The IRS position, however, contradicts the understanding of the 1st Section of the Superior Court of Justice, according to which the presumed ICMS tax credit does not integrate the calculation basis of the Corporate Income Tax (IRPJ) or the calculation basis of the Social Contribution on Net Profits (CSLL). For the panel, the classification of the credit as a costing or investment subsidy is irrelevant.
The First Section of the Court understood that considering tax benefits and incentives granted for ICMS in the calculation basis of the IRPJ and CSLL would violate the federative pact established in the 1988 Constitution, the discussion regarding the accounting classification of the benefit/tax incentive being irrelevant, whether it is a subsidy for funding, investment or cost recovery, since the benefit/tax incentive was excluded from the very concept of gross operating revenue provided for in article 44 of Law 4,506/1964.
The STJ also understood that the changes produced on article 30 of Law 12,973/2014 by articles 9 and 10 of Complementary Law 160/2017 are irrelevant, which deal with standardizing the classification of the ICMS presumed credit as an investment subsidy, with the possibility of deduction from the tax bases of said taxes, provided certain conditions are met, as claimed by the Federal Revenue
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Credit: Wix Media.
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