Donovan Lessa comments in ConJur on the STF decision that removed IRPJ and CSLL on the Selic rate

Report from the website Legal Consultant echoed the decision of the STF, which understood that the incidence of IRPJ and CSLL on the Selica rate received by the taxpayer in the event of an overpayment was unconstitutional. The website highlighted a comment by Dr. Donovan Mazza Lessa, partner at Maneira Advogados, regarding the topic.

REPEAT DEBT

Removal of Selic taxes is positive, but leaves doubts about compensation

Dias Toffoli was the rapporteur for the matter

Photo: G.Dettmar/Agência CNJ

September 25, 2021

Experts consulted by ConJur considered the decision of the Federal Supreme Court to consider unconstitutional as positive the incidence of corporate income tax (IRPJ) and social contribution on net profit (CSLL) on the Selic rate (interest on arrears and monetary correction) received by the taxpayer in the event of an overpayment.

However, they predict that the movement of taxpayers who seek compensation for payments now considered undue by the STF may give rise to new discussions that, perhaps, require a statement from the Court itself or the Federal Revenue Service on how the compensation will be given, as there was no modulation of the effects of the decision.

“The understanding could not be more correct”, said lawyer Heleno Taveira Torres, in an article published in ConJur still on Thursday (23/9), shortly after the Court formed a majority of six votes to approve the unconstitutionality.

Professor of Financial Law and associate professor in Tax Law at the Faculty of Law of USP and former vice-president of the International Fiscal Association (IFA), Torres understands that, following the judicial recognition of the unconstitutionality of a given exaction (charge), whether spontaneously paid or coercively demanded by the Treasury Administration, “there is certainly no need to talk about the return of ‘tribute’ properly said.”

“In contrast, there is the tax overpayment, the object of a public law obligation, within the scope of the State's extra-contractual responsibility, aimed at compensating for damages resulting from illicit practices committed by its agents”, he explains.

According to him, “when taxpayers promote collections of taxes later considered unconstitutional by the Judiciary, a true legal duty of reparation is imposed on the State. All to guarantee stability to the relations established between the Tax Authorities and taxpayers, by prohibiting — the broadest possible — the illicit enrichment of the treasury.”

This is what lawyer Alexandre Monteiro, partner at Bocater Advogados, also thinks. According to him, the Supreme Court demonstrated that it was setting a precedent by recognizing, just as in the case of late payment interest for late payment of salary for individuals, that this type of payment is mere compensation for damages suffered, and not increase in assets or profits.

“Considering that default interest generally corresponds to the application of the Selic on the tax debt, the judgment is particularly relevant in a recent scenario in which the Selic represents a value even lower than the monetary correction indices (IGP-M and IPCA), so that any incidence of income tax would end up representing a tax charge on resources that merely compensate for the erosion of the currency”, he says.

José Eduardo Tellini Toledo, partner at Madrona Advogados, recalls that the impact of the discussion is enormous for taxpayers, especially if one considers the recovery of the values of the so-called “thesis of the century” (exclusion of ICMS from the PIS and Cofins calculation base), in addition to several other situations in which the recovery of what was unduly paid suffered the incidence of the Selic rate and, consequently, the incidence of IR and CSLL.

“Certainly, what should be a cause for attention is how the Federal Revenue of Brazil will interpret the STF's statement for companies that have not filed any legal measure and will determine the values of the Selic rate after the judgment (even if referring to previous years). This is because it is not impossible for the RFB to limit these values, considering them as not being subject to IR and CSLL only for those that are after the date of modulation of the effects”, he states.

For Elise Tessin Daud, tax lawyer at Ogawa, Lazzerotti and Baraldi Advogados, the understanding reached by the STF is exactly that, if interest on late payment has a compensatory nature, it is not possible to conclude that the IRPJ and CSLL are applicable, which only aim to tax a true asset increase.

“For the gigantic range of taxpayers who emerged victorious in the judgment of the non-inclusion of ICMS in the PIS and Cofins calculation base, the absence of taxation, by IRPJ and CSLL, of the Selic rate levied on the tax debt to be recovered and judicial deposits to be returned, represents true cash flow relief, with the possibility of allocating the aforementioned amounts to essential company activities”, opined.

Bruno Teixeira, tax lawyer at TozziniFreire Advogados, understands that the most important point of the vote of minister Dias Toffoli, rapporteur, is that he recognizes the characteristic aspects of default interest. Contrary to what the STJ has already decided, Toffoli understands that late payment interest represents the recomposition of an emerging damage, due to the unavailability of the taxpayer's asset (money). This premise is fundamental for this case and for others in which the incidence of IR or CSLL on the amount that does not translate into the acquisition of new asset availability is discussed.

He explains that, for the rapporteur, the unavailability of the asset leads the creditor to resort to other sources of financing (liabilities), to recover the cash illegally or unconstitutionally required by the tax authorities. Late payment interest, in this context, serves to compensate for damages (emergent damage) resulting from the cost of acquiring assets (assets) for asset recovery.

“The vote reveals perception of business dynamics and the acquisition of sources of financing, extracting the economic reality when a tax is paid by the taxpayer as a result of an illegal or unconstitutional demand from the tax authorities, which in turn is illegally occupied. The adherence of six ministers to the rapporteur's vote reveals the Court's consistency with its precedents, as this line of reasoning has already been exposed in previous cases”, he stated.

For Gustavo Taparelli, from the law firm Abe Giovanini Advogados, companies that managed to recover amounts — in actions such as, for example, PIS/Cofins, ICMS exclusion, social security contributions on indemnified notice and others — will be positively impacted.

“Diligent companies that filed their lawsuits to discuss unconstitutionalities and tax illegalities have won or are about to win their lawsuits. It would be unfair and legally incorrect for them to pay income tax and social contribution on the Selic amounts, since the aforementioned interest only existed due to undue collection by the Tax Authorities. Taxing the amounts arising from the Selic would mean reducing the benefits for companies that have already been unduly charged in the past”, highlights.

Tax lawyer Donovan Mazza Lessa, partner at Maneira Advogados, also praised Dias Toffoli’s vote. "The vote is dense and builds a logical and correct reasoning about the legal nature of damage arising from default interest, based not only on tax doctrine and legislation, but also with inputs from civil law. And, no less important, the rapporteur minister's vote keeps the STF's jurisprudence stable, as it follows the same line as the recent precedent judged by the Court in the RE 855.091, when the Court ruled that the incidence of IR on late payment interest received by the individual due to compensation received in complaints was unconstitutional labor, precisely because it is understood that late payment interest, invariably, has the nature of compensation for emerging damage. And, being an emerging damage, late payment interest is nothing more than the recomposition of losses suffered by the creditor, which is why there is no asset increase eligible for taxation by IRPJ and CSLL”, he highlights.

The position is shared by tax expert Manuel Eduardo Cruvinel Borges, partner at the firm Peluso, Stupp e Guaritá Advogados. "The judgment will have a relevant impact on the majority of companies, especially following the conclusion of the issue of excluding ICMS from PIS and Cofins. Currently, companies are calculating and recovering credits arising from this topic and, not infrequently, backdating the calculation for ten years or more — which makes the Selic a relevant portion of the values of these credits. For example, the Selic accumulated since September 2011 totals 82.22% to be applied on the undue”, he highlights.

“The discussion about Selic taxation involves analyzing its legal nature, whether or not it corresponds to late payment interest with an exclusively compensatory nature, and whether it should receive the same treatment applied to the credit itself, that is, whether or not the accessory follows the main one. By recomposing the monetary loss of the value over the years and years in which the taxpayer waited to recover the debt, we understand that the Selic should not be reached by taxation on income”, adds Borges.

RE 1,063,187

Legal Consultant Magazine, September 25, 2021

https://www.conjur.com.br/2021-set-25/decisao-stf-afasta-tributos-selic-deixa-duvidas-compensacao