In the judgment of the motion for clarification in special appeal 1.968.755/PR, reported by Justice Mauro Campbell Marques, the Second Panel of the STJ decided that the amounts arising from ICMS tax benefits are not to be incurred in the IRPJ and CSLL calculation basis, in view of the fact that they are investment subsidies. 

An investment subsidy happens when the granting of a benefit requires some kind of counterpart from the taxpayer, such as the expansion of its business or the construction of a new branch. By force of art. 30 of law 12,973/14, this kind of subsidy must not be included in the calculation basis of the IRPJ and CSLL, provided it is accounted for as profit reserve. On the other hand, in the costing subsidy, there is no need for a counterpart, but the benefit must be included in the taxable income of the companies. According to this logic, the Brazilian Federal Revenue Service considered a large part of the tax benefits as funding subsidies, attracting the IRPJ and CSLL imposition. 

Complementary Law 160/17, however, by including § 4 to art. 30 in law 12,973/14, equated all ICMS tax incentives and benefits to investment subsidies, which is why the amounts related to such benefits should not be included in the IRPJ and CSLL calculation basis, provided they were accounted for as reserves of profits, as provided for in the caput of the provision. 

Even after the publication of Complementary Law 160/17, the Brazilian Federal Revenue Service, through the amendment of COSIT Consultation Solution 145/20, issued an opinion in the sense that tax benefits for ICMS purposes could only be characterized as a subsidy for investment if there was proof that the benefit promoted the expansion of the economic enterprise. It should be noted that the Brazilian Federal Revenue Service included a requirement for the recognition of the investment subsidy that does not exist in the legislation on the matter. 

The position taken by the STJ in special appeal 1.968.755/PR, therefore, represents an important step towards settling the controversy in a favorable way for taxpayers. According to the Court, all tax benefits for ICMS purposes should not be part of the IRPJ and CSLL calculation basis, provided they are accounted for as profit reserves.