Federal Court of São Paulo authorizes the exclusion of ICMS from the base of IRPJ and CSLL calculated based on the presumed profit

The thesis of the exclusion of ICMS from the base of the IRPJ and CSLL based on the presumed profit is gaining strength in the Judiciary.

The issue started shyly, with the acceptance of the thesis in the southern states of the country. Now, some judges from São Paulo are already accepting the thesis in the actions that deal with the theme. Gradually the issue gains strength.

A decision granting a preliminary injunction was issued in the DOU, issued in writ of mandate No. 5002141-22.2017.4.03.6100, by the 5th Federal Civil Court of São Paulo, Federal Judge Tiago Bitencourt de David. An excerpt from the decision follows:

“The Supreme Federal Court, in the judgment of Extraordinary Appeal with General Repercussion No. 574,706, by 6 votes to 4, confirmed the thesis that the ICMS, as it does not compose invoicing or gross revenue of companies, should be excluded from the calculation of PIS and COFINS.

An extraordinary understanding had already been taken by the Plenary, in 2014, in the judgment of Extraordinary Appeal No. 240.785 / MG, without general repercussion, whose menu was then drafted: “TAX - INCIDENCE BASE - CUMULATION - IMPROPRIEDITY. If the natural order of things were not enough, the constitutional legal framework makes it impossible to take a value referring to a certain tax as the basis for incurring another tax. COFINS - INCIDENCE BASE - BILLING - ICMS. What pertains to the Tax on Circulation of Goods and Provision of Services does not make up the basis of incidence of Cofins, because it is foreign to the concept of billing ”.

The precedent is adopted here as a major premise of the trial, highlighting the lack of modulation of the effects of the trial, which imposes the general rule of effectiveness ex tunc.

Regarding the IRPJ and CSLL, there is an identical argument to exclude their inclusion from the PIS / COFINS calculation base, as the discussion orbits around the scope of the term 'gross revenue', in the cases where there is an option for the presumed profit, as in the present case.

It is concluded, therefore, that the companies that calculate their taxes for the presumed profit are based on the calculation of the IRPJ and CSLL the gross revenue, which would include the ICMS.

At this point, it should be noted that the fact that there is a tax regime that allows the neckline of ICMS (real profit) does not have the ability to make taxation on the presumed profit lawful, especially considering that the IRPJ calculation base and CSLL calculated on the presumed profit has as parameter gross revenue, composed of the value of the goods or services plus the value of the ICMS.

I therefore understand that, having declared the inclusion of ICMS in the PIS and Cofins calculation base unconstitutional, the same interpretation must prevail for the IRPJ and CSLL determined on the presumed profit ”.