The Virtual Plenary of the Federal Supreme Court (STF) concluded yesterday (September 24), the trial of Extraordinary Appeal (RE) 1063187, with recognized general repercussion, where the UNION was discussing, against the company ELECTRO ACO ALTONA S A, the incidence of IRPJ and CSLL on the SELIC rate received by the taxpayer in the repetition of undue tax payment.
By 8 votes to 2, the STF, in accordance with the opinion of the Reporting Justice Dias Toffoli, dismissed the Federal Government's extraordinary appeal, giving an interpretation in conformity with the Federal Constitution to article 3, paragraph 1 of Law 7.713/88, article 17 of Decree-Law 1. 598/77 and article 43, II and § 1 of theNational Tax Code (Law 5172/66), so as to exclude the levy of income tax and Social Contribuition on Net Profit on the SELIC rate received by the taxpayer in the recovery of undue tax payment from the scope of application of these provisions.
Thus, in relation to Theme # 962 of the General Repercussion Theme Management on the STF Internet portal, the rapporteur proposed the following thesis: "The incidence of IRPJ and CSLL on amounts related to the Selic rate received as a result of the repetition of undue tax payment is unconstitutional."
The reporting justice was followed by Justices Ricardo Lewandowski, Alexandre de Morares, Cármen Lúcia, Roberto Barroso, Edson Fachin, Rosa Weber, and Luiz Fux. Justices Gilmar Mendes and Nunes Marques voted in favor of the Federal Government. Remember that the STF temporarily has 10 justices, considering the retirement of Justice Marco Aurélio, whose position has not yet been filled.
Repercussions of the decision
Considering that the judgment was given under the General Repercussion procedure, the understanding is applicable to all proceedings that discuss the same matter, in any instance or court, and is binding even on the Federal Revenue Service.
In this sense, companies should evaluate the opportunity and convenience of claiming the restitution/offsetting of the IRPJ and CSLL collected in the last 5 years, over the SELIC rate received in the tax restitution made by the Federal Revenue Service, as well as, in relation to the thesis of the century (Exclusion of the ICMS from the calculation basis of the PIS and COFINS), not to offer the correction of said rate to the taxation on income and profit, at the time of restitution and/or offsetting.
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Source: Wix Media
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