Tax Area

On 08.16.2022, the First Panel of the Superior Court of Justice (STJ), with Justice Regina Helena Costa as reporting Justice, tried Resp No. 1.746.268/SP and decided, by majority vote (3 to 2), to allow companies to deduct from the Corporate Income Tax (IRPJ) calculation basis all payments to managers and directors. Thus, eventual withdrawals and fees paid to these professionals would be deductible, and not only the fixed, monthly amounts. 

It is important to clarify that this discussion exclusively affects companies that calculate the IRPH under the taxable income regime. 

The case in question is about an appeal filed by Marcep S.A. against a decision handed down by the Federal Regional Court of the 3rd Region, which allowed the deductions only for fixed and monthly payments made to managers and directors. The honorable judges took into consideration article 31 of the Ruling Instruction 93/1997, which, when discussing the calculation of the IRPH and CSLL, prevents deductions when the payments do not correspond to the fixed monthly remuneration resulting from the services provision. 

The company claimed that this understanding made no sense, since managers and commonly directors are often paid per meeting and not per monthly remuneration. 

In this context, the reporting Justice said that IRPJ cannot be charged based only on infra-legal rule, which is in this case. Therefore, it was understood that the impediment in the deduction would only be possible if there was an express legal provision. Furthermore, the reporting Justice pointed out that operating costs and expenses are deductible from the IRPJ calculation basis, in the event of calculation under the taxable income regime, which includes payments to managers and third parties, even if occasional. 

In view of this, there are two scenarios. The Office of the General Counsel for the Federal Treasury can file a motion for clarification of this decision, with the provison that through this appeal the merits cannot be reviewed. Another possibility would be the continuation of this discussion in the Federal Supreme Court, due to the pre-questioning of the constitutional matter by the Tax Authorities.  

In view of the foregoing, we conclude that, although the STJ decision has no binding effect, it benefits the taxpayer, contrary to what has been decided in the lower courts, and, for this reason, the trend is for this issue to be the subject of intense litigation.