By Jean Carlo da Silva and João Vitor Oliveira Marques
The Superior Court of Justice (STJ) reaffirms the impossibility of taxing presumed ICMS credits. The federative pact shields taxpayers from Law No. 14,789/2023.
The Superior Court evaluates the new legislation on investment subsidies and reiterates the precedent—grounded in the federative pact—that prohibits federal taxation of presumed ICMS credits. Three decisions have been published in the last thirty days, all favorable to taxpayers.
The decisions were issued by Justices from both Tax Panels of the Superior Court of Justice (STJ), establishing that Law No. 14,789/2023 cannot alter the conclusion that presumed ICMS credits must be unconditionally excluded from the tax bases of Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL). This understanding was consolidated in the 2017 judgment of the Motion for Divergence in Special Appeal No. 1,517,492/PR and reaffirmed in 2023 in the binding thesis under Theme No. 1,182 of the Repetitive Appeals System.
Justice Teodoro Silva Santos (2nd Panel) reinforced the prohibition against taxing presumed ICMS credits in the Interlocutory Appeal in Special Appeal No. 2,975,719/SC (Nov. 5, 2025), stating that the revocation of Article 30 of Law No. 12,973/2014 by Law No. 14,789/2023 is irrelevant to the resolution of the matter.
Justice Gurgel de Faria (1st Panel) stressed that the legal basis for excluding presumed ICMS credits from IRPJ and CSLL taxation lies in the protection of the federative pact. In Special Appeal No. 2,202,266/RS (Dec. 3, 2025), he ruled in favor of the taxpayer to “disregard the limitation imposed by the supervening Law No. 14,789/2023,” recognizing that presumed ICMS credits must be excluded from the IRPJ and CSLL tax bases “without temporal limitation arising from the enactment of a complementary or ordinary law.”
Finally, in the judgment of Special Appeal No. 2,212,689/RS (Dec. 4, 2025), also authored by Justice Gurgel de Faria, the STJ reaffirmed that the revocation of Article 30 of Law No. 12,973/2014 by Law No. 14,789/2023 does not undermine the conclusion established in EREsp No. 1,517,492/PR— including with respect to the absence of any legal requirements for excluding presumed ICMS credits from the IRPJ and CSLL tax bases.
The thesis established by the First Section of the STJ in the judgment of EREsp No. 1,517,492/PR, authored by Justice Regina Helena Costa, held that the imposition of federal taxes (IRPJ and CSLL) on presumed ICMS credits violates the federative principle (Art. 150, VI, “a” of the Brazilian Constitution), as it indirectly withdraws the tax incentives legitimately granted by the Member States.
It is essential to note that this interpretation was maintained even after the enactment of Complementary Law No. 160/2017, which attempted to uniformly classify presumed ICMS credits as “investment subsidies” contingent upon meeting specific requirements (by adding §§4 and 5 to Article 30 of Law No. 12,973/2014). However, the STJ reasoned that these amendments did not apply to presumed ICMS credits, reaffirming the protection of the federative pact.
Thus, it is clear that the Federal Government’s latest attempt to curtail tax benefits granted by the States is also being rejected by the Judiciary. This demonstrates the legal viability for taxpayers to seek judicial confirmation to prevent the taxation of presumed ICMS credits by IRPJ and CSLL, even during the effectiveness of Law No. 14,789/2023.
The Tax Law Team of Marins Bertoldi Advogados remains fully available to address any questions regarding the new rules for credit habilitation requests and tax compensation.
