Provisional measure sets rules for companies to use, from 2024, tax benefit judged by STJ

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In April, the First Section of the Superior Court of Justice (STJ) decided that taxes should be levied on certain tax incentives given by states to companies and ruled in favor of the federal government. The Ministry of Finance informed this Friday (1st) that provisional measure 1,185, published by the Lula government this week, establishes rules for companies in the country to be able to use, as of 2024, a tax benefit judged by the Superior Court of Justice ( STJ). In April, the First Section of the Superior Court of Justice (STJ) decided that taxes should be levied on certain tax incentives given by states to companies and ruled in favor of the federal government. The action questioned whether companies can deduct from the federal tax calculation base (IRPJ and CSLL) the tax incentives granted by the states via ICMS. This deduction, when carried out, reduces the federal tax base. Therefore, the Union collects less. With the decision, it will only be possible to deduct from the calculation base state subsidies linked to investments and upon proof of legal requirements. Therefore, subsidies linked to the cost of business activity cannot be deducted. In practice, the decision of the STJ was a victory for the government because it increased the expectation of collection of these taxes (IRPJ and CSLL), which will be calculated based on a larger base. According to the Secretary of the Federal Revenue, Robinson Barreirinhas, the MP starts from the understanding of the STJ that benefits linked to funding are no longer allowed. Based on the provisional measure, companies will have to qualify with the Revenue to register investments made based on tax incentives – and, with that, obtain a reduction in taxation. “He will qualify through a simplified procedure within the system we already have for declarations. Let’s see the state law. It conditions this subsidy to an investment. He is entitled to a presumed credit of ‘X’ as long as he buys equipment, as long as it expands the factory. If that’s what it takes, we’ll defer it”, explained Barreirinhas to journalists. The budget proposal for the year 2024, sent this Thursday (31) by the government to the National Congress, brings an estimated collection of BRL 35.3 billion due to the decision of the STJ – which limited the granting of this type of investment benefit. This value is considered by the government in the search for zero deficit in its accounts next year – promised by the Minister of Finance, Fernando Haddad. Proposal for a Budget Law: Haddad tries to ward off speculation that the government could give up on zeroing the public deficit in 2024; understand According to secretary Barreirinhas, the estimate of R$ 35.3 billion in inflow of resources that is in the 2024 budget proposal considers only the “flow” of resources due to the understanding of the STF on tax benefits, that is, the future values. With that, he explained, the estimate does not consider the amounts owed by companies in recent years for having irregularly used this benefit. The secretary recalled that the Federal Revenue has already started notifying thousands of companies to collect the debts. “if [a empresa] do not self-regulate [aceitar o pagamento dos débitos em concordância com o Fisco], the value will double. But 60% of the companies contacted the Federal Revenue Service. We are waiting for this process. We haven’t closed the number yet, but there are tens of billions [de reais, a expectativa de arrecadação com os valores devidos]”, Barreirinhas told journalists. He admitted that there is a culture of litigation in the country, but added that the role of the Tax Authorities is to guide the taxpayer. “It is cheaper to sit down with me, talk and solve this problem. One hour the bill arrives and it is high, “he concluded.

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