In recent rulings, the STJ maintained the understanding that, even after the entry into force of Law No. 14,789/2023 (the new subsidies law), the presumed ICMS credit should not be included in the calculation basis of IRPJ and CSLL, under penalty of directly violating the constitutional federal pact.

The First Panel of the STJ, in the judgment of EREsp 1.517.492/PR (in 2017), had already decided on the exclusion of the presumed ICMS credit (which is characterized as a subsidy for operating costs) from the calculation basis of IRPJ and CSLL, since the imposition of a federal tax on an ICMS tax incentive would offend the federalist principle.

Subsequently, Law No. 14,789/2023 introduced new provisions regarding the tax credit arising from subsidies for the installation or expansion of economic enterprises, with effects starting on January 1, 2024.

Based on this, the National Treasury Attorney's Office (PGFN) began to argue that, after the enactment of Law No. 14,789/2023, it would no longer be possible to deduct the value of subsidies from the taxable income base. Therefore, from January 2024 onward, the precedents established by the STJ in EREsp No. 1.517.492 and in repetitive theme No. 1.182 would no longer be applicable.

According to the PGFN's interpretation, as of January 2024, it would no longer be possible to exclude presumed credits from the calculation basis of IRPJ and CSLL due to the regulatory change enacted by Law No. 14,789/2023.

The matter again reached the STJ which, in recent decisions¹, upheld the understanding expressed in EREsp No. 1.517.492/PR that taxing presumed ICMS credits by the Federal Government violates the federal pact and, therefore, such credits do not compose the calculation basis of IRPJ and CSLL, applying this understanding even after 01/01/2024 (effective date of Law No. 14,789/2023).

Since the PGFN tends to persist in the controversy and take the matter to the Supreme Federal Court (STF), it is recommended to analyze, on a case-by-case basis, the possibility of adopting preventive judicial measures to secure the treatment from 2024 onward and, when applicable, recover amounts unduly collected with proper documentation.

The Dupont Spiller Fadanelli Advogados team continues to monitor the matter and remains fully available to clarify any questions on the subject.