IRPJ/CSLL, ICMS tax incentives and impacts on agribusiness

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SpaccaAlthough not exclusively, the agribusiness sector, given its importance and peculiarity, has long obtained tax incentives from states with regard to ICMS, through various instruments (presumed credit, reduced calculation base and incentives of a financial, among others).

Such incentives, especially the presumed ICMS credit, would be forms of financial renunciation by the State, through a legal fiction, as it would not result from the application of non-cumulative status.

However, the granting of such incentives can generate, from an accounting point of view, a reduction or reduction in costs and expenses compared to the way in which the ICMS would remain owed. In B2B Lead this way, there would be a supposed increase in the profit to be taxed as IRPJ and CSLL.

This interpretation, however, is not the most appropriate and, at the current time, there are strong legal elements to prevent any attempt to tax this hypothesis.

The IRPJ and CSLL requirement imposes the finding, from a legal and not merely an accounting point of view, of a gain/profit with an effective and unconditioned asset increase, with full legal and economic availability (article 153, III, CF/88; article 43 , from CTN).

Therefore, an incentive granted by a state of the federation regarding the method of calculating ICMS, in fact, cannot be taxed, since, from a legal perspective, this supposed “reduction” does not cause profit or taxable income with a true increase in assets. , with legal and economic availability, being a purely accounting mutation.



More than that, this position is supported by respect for federalism conceived by the Brazilian Federal Constitution, considering that taxation by the Union of states' waivers would imply the annulment of the effects of the incentive granted.

It is for no other reason that the Superior Court of Justice, in a judgment on November 8, 2017, in the case of Motion for Divergence 1,517,492/PR, with minister Regina Helena Costa as rapporteur, pacified the issue in the 1st Section, in favor of taxpayers, by establishing that: