STF has a majority against the occurrence of IRPJ and CSLL in Selic


The Federal Supreme Court (STF) formed a majority in its virtual plenary session to declare unconstitutional the imposition of the IRPJ and the CSLL on the amounts relating to the tax rate collected as a result of repeated payments of taxes not overdue. The rapporteur of the file was heard by Minister Dias Toffoli, who was to be followed by ministers Ricardo Lewandowski, Carmen Lucia, Alexandre de Moraes, Edson Fachin, Luis Roberto from the start of Thursday evening (23/9). Barroso and Rose Webber.

Minister Gilmar Mendes submitted a dissenting vote, realizing the order was unconstitutional and should be tried by the Supreme Court of Justice (STJ). However, he states in his statement that if other ministers By maintaining an understanding of the decision, he will also be against the prosecution.

Toffoli was the decision maker. J. Dittmar / CNJ

The issue in the judgment is an appeal in which the occurrence of an income tax in excess of the specified rate levied by the taxpayer (legal person) is discussed in the return of unpaid taxes (recurring unpaid payments). In extraordinary appeal (RE) 1 063 187, the Federation appealed against the decision of the Federal Regional Court of District 4 (TRF-4) in favor of a foundry located in Blumenau (SC).

Since 1996, the Selic has been the only monetary and interest correction indicator applicable to the payment of tax debts. The TRF-4, in a decision on the exception of unconstitutionality at the Special Court, recognized that income tax cannot be levied on default interest, given the nature of the compensation, nor on monetary correction, since it is not an increase in equity. The same understanding of income tax has also been extended to include social contribution on net income (CSLL).

The union argues that the constitution does not provide a defined concept of profit and that its content must be taken from legislation under the constitution, which provides for taxation. According to the appeal, the part of the default interest is in the nature of a loss of profit and is therefore taxable. Since the asset is taxable, the cash correction will also be taxable, depending on the rule that the accessory follows the asset.

Toffoli, in his vote, argues that “default interest is outside the scope of income tax and CSLL, as it is primarily aimed at recovering actual losses, decreases, and does no allusion to an increase in the creditor’s equity ”.

Expert opinion

In the opinion of the lawyer Maria Daniel Toledo, The partner in tax litigation at the law firm Lira Advogados maintained logical consistency in recognizing Selic’s claim as reimbursement for an economic loss resulting from a delay in her recovery, which she had unduly or overpaid. .

He declared: “Thus, the subject distinguishes the damages resulting from a loss of profit, and provides the best economic and fiscal interpretation of legal certainty and especially of the guarantee of recovery in the broad sense of the taxpayer, who is effectively injured by excessive taxes.

According to her, it remains to be seen whether there will be an adjustment of the effects in favor of the national treasury, especially since after having judged the request for clarification aimed at excluding the ICMS from the basis for calculating the Pis and Cofins, the amounts to be repeated by the taxpayer represented a significant amount, which was certainly within the tax expectations of the IRPJ and CSL.

According to the lawyer Julia Ferreira Cosi Barbosa, from the tax office of Finocchio & Ustra, “To the taxpayer’s surprise, most ministers voted in favor of the non-taxation of SELIC by the IRPJ and the CSLL, as it did not correspond to the concept of income in due to the nature of the compensation.

It considers that, given the recent tax rulings of the Court, the repeal of these taxes represents a major victory for taxpayers, in particular when it comes to recovering large sums paid unnecessarily due to the exclusion of tax. ICMS of PIS and COFINS, and immensity. The amounts are already taxable with this refund.

“The understanding is consistent and appropriate for the interpretation of the Federal Constitution, because the SELIC rate is compensation that a taxpayer receives for something already improperly collected, and therefore his taxes are unreasonable,” he said. -he declares.

“The rapporteur explained, without leaving any doubt, that the STF has a precedent in that the hypothetical interest paid due to the delay in the payment of civil servants’ salaries is not an increase in equity, but simply a replenishment of own funds. The same reasoning applies to the response of the entities.In addition, in a detailed study, the rapporteur explained that Selic is the combination of monetary correction and interest on arrears. The correction will only cancel out the inflationary effect. Default interest, in turn, will repair the damage caused by the deprivation of the resource. These will be non-taxable indemnities. Finally, the decision clarifies all the economic damage suffered by companies when the return of their capital by public entities is delayed. It’s a very strong vote, ”said the tax prosecutor. brino kingma, from the Vieira Rezende office.

Click on here To read Dias Toffoli’s vote

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