The Supreme Federal Court (STF) formed a majority in its virtual plenary session to declare unconstitutional the imposition of the IRPJ and CSLL on amounts relating to the tax rate received as a result of repeated unaccrued tax payments. The Rapporteur of the matter was understood by Minister Dias Toffoli, who was, as of the beginning of Thursday night (23/9), to be followed by Ministers Ricardo Lewandowski, Carmen Lucia, Alexandre de Moraes, Edson Fachin, Luis Roberto. Barroso and Pink Webber.
Minister Gilmar Mendes submitted a dissenting vote, realizing that the order was unconstitutional and should be ruled by the Supreme Court of Justice (STJ). However, he states in his statement that if other ministers Maintaining comprehension of the decision, it will also be against the charge.
The issue in the judgment is an appeal in which the occurrence of income tax over the specified rate received by the taxpayer (legal entity) is discussed in the return of unpaid taxes (recurring unpaid payments). In Extraordinary Appeal (RE) 1,063,187, the Federation appealed 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 is the only indicator of monetary correction and interest applicable to the payment of tax debts. TRF-4, in a ruling on the Unconstitutionality Objection in the Special Court, recognized that income tax cannot be levied on interest in default, given the nature of compensation, nor on monetary correction, since this does not consist of 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 definite concept of profit and its content must be extracted from the legislation under the Constitution, which provides for taxation. According to the appeal, the part of the interest on late payment has the nature of loss of profit, and therefore is taxable. Since the asset is taxable, the cash correction will also be taxable, according to the rule that the accessory follows the asset.
Toffoli, in his vote, argues that “interest in late payment is outside the scope of income tax and CSLL, because it is intended, above all, to recover actual losses, decreases, and not allude to an increase in the creditor’s equity.”
In the opinion of the lawyer Maria Daniel Toledo, Partner in tax litigation at law firm Lira Advogados maintained logical consistency in recognizing Selic’s application as a reimbursement for economic loss resulting from delay in recovering it, which it had unduly or excessively paid.
He said, “Thus, the subject distinguishes damage arising from loss of profits, and provides the best economic and tax interpretation of legal certainty and especially the guarantee of recovery in the broad sense of the taxpayer, who is actually harmed by excessive taxes.”
According to her, it remains to be seen whether there will be any adjustment of the effects in favor of the national treasury, especially since after judging the request for clarification to exclude ICMS from the basis of the calculation of Pis and Cofins, the amounts to be repeated by the taxpayer represented a significant amount, which was Definitely in the tax expectations of the IRPJ and CSL.
According to the lawyer Julia Ferreira Cosi Barbosa, of the Tax Office of Finocchio & Ustra, “To the taxpayer’s surprise, most ministers voted in favor of SELIC not being taxed by the IRPJ and CSLL, as it did not fit into the income concept due to the nature of compensation.
It considers that, given the recent tax rulings of the Court, the repeal of these taxes represents a major victory for taxpayers, especially when considering the recovery of large sums paid unnecessarily due to the exclusion of ICMS from PIS and COFINS, and the sheer immensity. Amounts are already taxable with this refund.
“The understanding is coherent and appropriate for the interpretation of the Federal Constitution, because the SELIC rate is a compensation a taxpayer receives for something already improperly collected, and therefore, its taxes are unreasonable,” he said.
“The Rapporteur explained, without leaving any doubt, that the STF has precedent in the sense that the hypothetical interest paid due to the delay in the payment of salaries to civil servants does not constitute an increase in equity, but merely a reconstitution of equity. The same reasoning applies to the response of entities In addition, in a detailed study, the rapporteur explained that Selic is the combination of monetary correction and interest on arrears. Correction will only cancel the inflationary effect. The default interest, in turn, will repair the damage caused by deprivation of the resource. Those will be Compensation not subject to taxation. Finally, the decision clarifies all the economic damage to companies when the return of their capital by public entities is delayed. It is a very strong vote,” said the tax attorney brino kingma, from the office of Vieira Rezende.
click Here To read Dias Toffoli’s vote
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