Frederico Bastos and Daniel Zugman: last year alone, the Tax Authority published 32 consultation solutions on the subject — Photo: Disclosure
The Federal Revenue has tightened its grip on demanding taxes on ICMS tax incentives, despite decisions by the Judiciary and the Administrative Council of Tax Appeals (Carf) favorable to taxpayers. Last year alone, the Tax Authority published 32 consultation solutions on the subject – more than double the number of statements in 2020 (13). “This is one of the biggest bottlenecks in the tax area”, says Daniel Zugman, partner at BVZ Advogados, the firm that carried out the survey.
To get an idea of the financial impact of this debate on the Union's coffers, the discussion in the Federal Supreme Court (STF), with general repercussions, relating only to the incidence of PIS and Cofins on such values could cause an impact of R$ 3.3 billion , according to the Attorney General’s Office of the National Treasury (PGFN).
In responses to taxpayers' queries published in 2021, the IRS states that the company is only exempt from Corporate Income Tax (IRPJ) and CSLL if incentives were granted for the implementation or expansion of an economic enterprise. Or, in another vein, that it is the taxpayer's duty to analyze the terms and conditions under which such incentives were given.
“There is a similarity in the answers, but none concludes that a certain benefit could be excluded from taxation”, says Frederico Bastos, also a partner at BVZ.
The conflict is old. With Complementary Law No. 160, of 2017, the market considered the discussion to be at a standstill, as it predicted that tax incentives granted by States and the Federal District are subsidies for investment – therefore, free from federal taxes.
The standard included paragraph 4 in article 30 of Law No. 12,973, of 2014, according to which requirements or conditions not provided for in the article are prohibited. One of the requirements is that the tax savings resources remain within the company (as a profit reserve) and not be distributed to partners.
But, according to lawyers, the IRS began a movement just over a year ago to impose stricter conditions.
It was with Consultation Solution (SC) nº 145, published in December 2020, by the General Coordination of Inspection (Cosit), which guides the country's inspectors. In it, he predicted that only incentives granted as a stimulus for the implementation or expansion of economic enterprises – with the construction or modernization of industrial plants, for example – escape taxation.
“The market was on alert after this solution, the fight will start again. The tax authorities signal that they want something concrete”, says Renato Reis Batiston, partner in the tax area at Cescon Barrieu. After SC 45, he says, others were published in the same direction over the last year. “The chance of having a favorable response has decreased significantly”, he points out. With the negative manifestations, the risk of fines returns, warns tax specialist Ana Cláudia Utumi, partner at Utumi Advogados.
In one of the guidelines published last year (SC Cosit nº 94), the Tax Authorities declassify as investment subsidies – which are exempt from taxation – tax incentives “granted without any burden or duty to the subsidized party, unconditionally or under conditions unrelated to the implementation or expansion of an economic enterprise”.
Tax experts, however, have advised clients to continue considering incentives as subsidies for investment and to waive taxation. “I don’t see any legal reason to change the tax treatment”, says lawyer Ana Cláudia Utumi.
According to LC 160, she states, what must be analyzed is whether it is a tax incentive granted by States or the Federal District, and not what was done with the resources generated with the ICMS savings. “It is not possible to change the understanding of the law by solving Query. The tax authorities want to resurrect a discussion that they lost”, he says.
The Superior Chamber of Carf, the highest instance of the council, handed down five decisions favorable to taxpayers last year, related to IRPJ requirements, according to a survey by the BVZ office (process no. 13116.721486/2011-29, for example). In April, the 1st Section of the Superior Court of Justice (STJ) standardized the Court's understanding. For ministers, the Union cannot demand IR and CSLL on presumed ICMS credits. This is because the incentive would not constitute profit and taxation would violate the federative principle.
“The taxation by the Union of values corresponding to tax incentives stimulates indirect competition with the Member State, disregarding cooperation and equality, cornerstones of the Federation”, stated Minister Regina Helena Costa, in the ruling (Eresp nº 1443771).
According to Zugman and Bastos, the discussion about IR and CSLL is more stabilized. But there is still a dispute over the collection of PIS and Cofins on ICMS tax benefits. In September, the 2nd Panel of the STJ, unanimously, released a company from collecting social contributions – in addition to IR and CSLL – on presumed state tax credit. “Such credit does not, strictly speaking, characterize an increase in revenue capable of having an impact on the contribution calculation basis”, stated minister Francisco Falcão, in the vote (AgInt in REsp nº 1813018).
When looking into the matter, the STF is divided on taxation by PIS and Cofins. The analysis in the Virtual Plenary was tied at four votes to four in April, when minister Gilmar Mendes asked for prominence. The appeal with general repercussion was sent to the Physical Plenary. It was included on the agenda for the November session by the president, minister Luiz Fux, but was withdrawn.
In addition to the rapporteur, minister Marco Aurélio – who retired in July -, ministers Rosa Weber and Cármen Lúcia and ministers Edson Fachin and Ricardo Lewandowski voted in favor of the companies. Ministers Alexandre de Moraes, Gilmar Mendes, Nunes Marques and Luiz Fux voted in favor of the Union (RE 835.818, Theme 843). There is no prediction of when the case will be judged.
In a note sent to Valor, the Federal Revenue reinforced the position set out in SC nº 145. It stated that the legal change itself – brought by LC nº 170 – maintained as a condition for classifying the incentive as “for investment” the conditions already provided for in the article 30 of Law 12,973.
The device, in turn, says the Tax Authorities, expressly states that one of the conditions for classification as a subsidy for investment is that its concession is made “as a stimulus for the implementation or expansion of economic enterprises”.
By Bárbara Pombo — From São Paulo
04/02/2022
Source: Valor Econômico
