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Inclusion of Presumed ICMS Credit is Infraconstitutional Matter, Decides STF

On 08/18/2017, the Federal Supreme Court, in the records of RE 1.052.277/SC, which deals with the possibility of excluding presumed ICMS credits, granted due to state tax benefits, from the IRPJ calculation base and of the CSLL calculation base, recognized, by a majority, the lack of general repercussion of the issue, as it understands that it is not a constitutional matter.


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Extraordinary resource. Tributary. Presumed ICMS credits. Inclusion in the IRPJ and CSLL tax base. Infraconstitutional nature of the controversy. Absence of general repercussions.


The Court, therefore, did not reverse the decision issued by the Regional Court of the Fourth Region that guaranteed this right to the taxpayer, as seen below:


  1. The presumed ICMS credits do not constitute an increase in the company's equity, but, on the contrary, are embodied in a tax benefit granted by the State in order to promote the economy, in no way being equated or confused with profit or income, the basis for calculating the IRPJ and of CSLL.

  2. Sentence upheld.


Taxpayers who wish to see their right to no longer be subject to this tax, as well as the recovery of amounts unduly collected, must file the most appropriate judicial measure, bearing in mind that these decisions do not have a binding effect, norrise omnes.

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