Carf cancela autuações por incentivos fiscais

Carf cancela autuações por incentivos fiscais

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Duas decisões recentes do Conselho Administrativo de Recursos Fiscais (Carf) animaram os contribuintes que tentam afastar cobranças de Imposto de Renda (IRPJ) e CSLL sobre incentivos fiscais concedidos pelos Estados. A partir dos julgados, o órgão começou a aplicar a Lei Complementar nº 160.

A norma estipula que benefícios e incentivos fiscais de ICMS concedidos pelos Estados, mesmo sem aprovação do Conselho Nacional de Política Fazendária (Confaz), serão considerados subvenções para investimento e por esse motivo não são tributáveis. Antes da norma, a Receita Federal argumentava que esses benefícios fiscais seriam subvenções para custeio ou operação, e, portanto, tributáveis.

Os artigos da lei complementar que tratam do assunto chegaram a ser vetados pelo presidente da República, Michel Temer, mas posteriormente, em 22 de novembro, derrubados pelo Congresso.

Com a derrubada dos vetos, surgiram dúvidas sobre o uso da nova previsão, especialmente em relação aos processos em andamento. Nas primeiras decisões sobre o assunto, as Turmas, por unanimidade, seguiram a lei. Os processos envolvem a Caoa (13116.722236 /2014-59) e a White Martins (10280.722443/201171).

A Procuradoria-Geral da Fazenda Nacional (PGFN) afirma que tem seguido indicação da 1ª Turma da Câmara Superior do Carf, segundo a qual a aplicação da lei complementar para os benefícios de ICMS sem aprovação do Confaz está condicionada à comprovação dos requisitos legais (exigências de registro e depósito dos benefícios fiscais).

De acordo com o advogado João Marcos Colussi, sócio do Mattos Filho Advogados, alguns casos têm sido sobrestados no Carf para o cumprimento da previsão. Em um processo que representou a White Martins Gases Industriais do Norte em abril, a 2ª Turma da 3ª Câmara da 1ª Seção decidiu que a nova redação da Lei nº 12.773, alterada pela lei complementar 160, tem aplicação imediata. Com isso, afastou a autuação pelo não recolhimento de IRPJ e CSLL de 2007.

A empresa havia utilizado benefício concedido pelo Amazonas, que segundo a lei complementar nº 24 de 1975 tem a prerrogativa de concessão sem aprovação do Confaz.

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A autuação também cobra PIS e Cofins e, nessa parte, foi mantida. A empresa citou o precedente do Supremo tribunal Federal (STF) que retirou o ICMS da base de cálculo do PIS e da Cofins e outro do Superior Tribunal de Justiça (STJ) que afastou o crédito presumido de ICMS da base de cálculo do IRPJ e da CSLL, mas o pedido não foi aceito. Colussi afirma que a LC 160 também abarca as contribuições e aguardará a formalização do acórdão para decidir se recorrerá.

Na decisão, o relator, conselheiro Gustavo Guimarães da Fonseca, representante dos contribuintes, afirma que o PIS e a Cofins não se relaciona com o caráter de subvenção de incentivo e custeio e, por isso, não aceitou os argumentos da empresa. Já para o IRPJ e a CSLL, segundo o relator, a cobrança é afastada pela lei complementar 160.

A PGFN afirmou que no processo da White Martins foi feita a aplicação imediata do artigo 10 da LC 160, de 2017 e foi fundamentada nas características específicas da Zona Franca de Manaus (subvenção concedida pela Estado do Amazonas).

No processo da Caoa (13116.722236/2014-59) julgado na última semana, a 2ª Turma da 3ª Câmara da 1ª Seção também afastou a cobrança de IRPJ e CSLL. A empresa havia usado benefício fiscal do Estado de Goiás. Essa parte da autuação era de quase R$ 800 milhões. Foi mantida cobrança relativa ao IPI. Deve ser apresentado recurso ao Carf, segundo o advogado da Caoa, Roberto Quiroga Mosquera, sócio do Mattos Filho.

A PGFN aguardará a formalização do acórdão para analisar o cabimento de recurso.

De acordo com o tributarista Fabio Calcini, do escritório Brasil Salomão e Matthes, não caberia a tributação de IRPJ e CSLL e nem de PIS e Cofins, tendo como base a Lei Complementar 160. “O Carf confirmou que a lei tem aplicação imediata e retroativamente (aos processos que já estavam em tramitação)”, afirma.

Fonte: Jornal Contábil
Data: 24 de maio de 2018
Acesso: 25 de maio de 2018

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