Government will have a hard time taxing incentives
Federal Supreme Court (STF) Justice André Mendonça lifted the injunction that suspended the judgment of the Superior Court of Justice (STJ) on the taxation of companies that receive sales tax ICMS incentives. But even so, the federal government will have a hard time collecting what it expects to collect - R$70 billion, according to Finance Minister Fernando Haddad, and R$47 billion, according to the Secretariat of Federal Revenue.Lawyers say the Ministry of Finance is overstating its victory in the STJ. For them, the justices did not give the federal government a free pass based on the theses presented.The collection of Business Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL) on profits obtained with state incentives, they say, would be allowed only in specific cases and would not reach most companies.This reaction opens the door to further legal battles. Both in lower courts - if the federal government insists on general collection - and at the STJ.Lawyers associated with the amicus curiae groups - entities that participate in court arguments as interested parties - say there will certainly be an appeal of the decision in the agitated trial on April 26.They want the justices to clarify the situations in which the federal government can collect taxes. "The victory the government is telling, that it can tax everyone and collect billions, is not the real victory," said a lawyer who asked not to be named.There were two discussions at the table. One was about the federative pact. In 2017, the STJ reached an agreement on presumed credits (a type of ICMS tax incentive). It said that, by taxing, the federal government would be undermining a benefit granted by states, which was not allowed.The judgment this time would say whether the same understanding - against taxation for violation of the federative pact - could be applied to other types of incentives granted by the states: reduction of the tax base, rate reduction, exemption, and deferral, among others.The second discussion was about the Complementary Law No. 160 of 2017, which made changes to Article 30 of Law No. 12,973 of 2014. Before this change, there was a separation between investment subsidies, where the company assumes a counterpart when receiving the benefit (expansion or construction of a plant), and cost subsidies, where there is no counterpart.The previous text said that the federal government could not tax investment subsidies. Then, with the change, it was stated...
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