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How companies with ICMS (sales tax) incentive can have IRPJ / CSLL (income tax and social contribution over profits) tax benefit

Many legal entities that have ICMS (sales tax) tax incentives have not taken advantage of the tax benefits in calculating the IRPJ / CSLL (income tax and social contribution over profits). It’s possible that they are not aware of the recent changes in the Federal tax rules and the recent judgments of the Administrative Council of Tax Appeals (Carf) related to the inclusion of the ICMS tax benefit as investment, that has as objective the stimulation of regional development through the implantation or expansion of economic enterprises.

The result is the possibility of excluding the ICMS tax benefits from the basis of calculation for the calculation of IRPJ / CSLL. This exclusion, however, is not obvious. For many years, the tax authorities have been making it difficult for taxpayers to exclude such ICMS tax benefits from the IRPJ / CSLL tax basis, treating them as “revenue” from the company.

Nowadays, after a decision by the Superior Chamber of the Carf at the end of 2018, in addition to laws no. 12,973 / 14 and supplementary no. 160/17, for the taxpayer to exclude the tax benefit from the calculation of the net income to be taxed, it would need to validate the tax benefit with the National Council of Tax Policy (Confaz). What is more interesting is that Carf understood that the new rules are also valid for past cases, i.e., for benefits that were obtained in previous years, whether they were assessed or not.

This is great news for taxpayers, that are starting to have an incentive for a benefit! A white fly in the middle of so many negative news for business people.

By Tatiana Del Giudice Cappa Chiaradia, lawyer at Candido Martins Advogados