A tributação dos incentivos fiscais de Imposto sobre Circulação de Mercadorias e Serviços (ICMS): a ilegalidade da incidência de Imposto de Renda de Pessoa Jurídica (IRPJ) e da Contribuição Social sobre o Lucro Líquido (CSLL)

Abstract

The (i)legality of the taxation of ICMS tax incentives by the IRPJ and the CSLL - the focus of study of this monograph - is a widely debated topic in the national legal spheres. For the legislator, this taxation results from a previous definition of tax incentives, that is, if the ICMS tax incentives meet the requirements to be classified as an investment subsidy, they will not be subject to taxation by the IRPJ and CSLL. However, this provision does not explore several other factors that should be considered by the legislator in order to define whether such incentives could compose the tax bases of the taxes in question, such as: the concept of income for the constituent and the observance of the federative pact. Therefore, this conclusion paper seeks to analyze and explain the reasons why the ICMS tax incentives cannot be included in the calculation basis of the IRPJ and CSLL. Furthermore, we will demonstrate reasons why Complementary Law No. 160/17, which has been edited to pacify the conflicts over invalid tax benefits, should not be applied in judgments on the subject at hand. Therefore, in order to carry out the mentioned study, an analysis of the Brazilian legislation, case law and, of course, outline about what the most recent doctrine understands about the subject brought up will be made. From the aforementioned, the clear affront that the taxation of ICMS tax incentives, through IRPJ and CSLL, causes to the constitutional concept of income and to the federative pact established between the Union and the States was verified. However, we also understand that the matter debated here is far from being exhausted in judicial and administrative proceedings, as it is a current issue with solid argumentation bases both for the taxpayer (defended in this conclusion work) and for the National Treasury.