Descrição
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.
