In short
All cases involving the inclusion of presumed ICMS credits (state tax incentives) in the tax base for IRPJ and CSLL currently pending before the Superior Court of Justice and in lower courts will be stayed. These cases will await the resolution of these appeals, and the resulting decisions must be applied to all cases dealing with this issue.
The First Section of the Superior Court of Justice (STJ) has taken a decisive step toward resolving one of the most significant tax disputes of our time. Under the reporting judge, Justice Regina Helena Costa, the Court referred Special Appeals 2.221.127, 2.171.374, 2.188.361, and 2.188.282 for adjudication under the repetitive appeals procedure, registering them as Theme 1.416.
This means that all cases dealing with the inclusion of presumed ICMS credits (state tax incentives) in the IRPJ and CSLL tax bases currently under review in the Superior Court of Justice and in the appellate courts will be suspended; they will await the adjudication of these appeals, and the resulting decision must be applied to all cases addressing this issue.
What is under discussion? The crux of the controversy is whether presumed ICMS credits—tax incentives granted by the states to promote regional development—should or should not be included in the IRPJ and CSLL tax bases.
The debate takes on special relevance because it covers two distinct periods:
The legal regime prior to Law 14.789/2023;
The legal regime following that law, which drastically altered the rules for utilizing these incentives.
Background and Legal Certainty Although the STJ has, since 2017, maintained a ruling favorable to taxpayers (in the sense that these credits are not profit and, therefore, should not be taxed by the federal government), the enactment of Law 14.789/2023 introduced new requirements and increased legal uncertainty. According to data from the National Treasury, there are more than 7,300 ongoing lawsuits on the subject, involving amounts exceeding R$ 12 billion.
The Nationwide Suspension of Proceedings With the assignment of Case No. 1,416, the panel ordered the suspension of all pending proceedings addressing this matter in the appellate courts or before the STJ itself. This measure aims to ensure that, once the final decision is rendered, it is applied uniformly throughout the country, avoiding conflicting rulings.
Impact on Businesses For the business sector, the ruling will be a watershed moment. A favorable decision will consolidate the understanding that state incentives cannot be “nullified” by federal taxation, preserving the financial viability of companies that invest in incentivized regions.
The decision can be accessed at the link: Electronic Judgment
The tax practice team at Okumura Sociedade de Advogados is available to assist your company with matters involving taxes, tax reform, and tax transition before
Informational content. It is not legal advice and does not replace an analysis of the specific case. Produced with the support of artificial intelligence and reviewed by the signing lawyer, under the firm's AI Policy.