The taxpayer, N Claudino & Cia LTDA, took advantage of a benefit contained in decree 23,210/2002 in Paraíba. The standard allowed sectors such as coffee roasting and grinding; wholesalers in general and distribution centers to opt for a special ICMS collection regime, with the counterpart of establishing a billing target. There was also a need to generate 15 to 30 direct jobs, depending on the sector.
The case was reported by counselor Alexandre Evaristo, who considered that after the enactment of Law 12,973, there was an equivalence to the subsidy to cover the tax consequences of the investment subsidy. Paragraph 4 of article 30 of the rule defines “the fiscal or financial-fiscal incentives and benefits related to the tax provided for in item II of the caput of art. 155 of the Federal Constitution, granted by the States and the Federal District, are considered investment subsidies, with the requirement of other requirements or conditions not provided for in this article being prohibited”.
Agreeing with the rapporteur's position, counselor Luis Henrique Toselli pointed out that Law 12,973 came to end the discussion about subsidy for funding X subsidy for investment. By deciding to tax the amounts received by the taxpayer, the Higher Chamber would be “resurrecting” the debate.
In addition to Toselli and Evaristo, members Lívia de Carli Germano, Gustavo Guimarães and Carlos Henrique de Oliveira voted in favor of the taxpayer. It was the first time that Oliveira, president of Carf, participated in a trial on the subject in the Superior Chamber.
Councilors Edeli Pereira Bessa, Fernando Brasil and Luiz Tadeu Matosinho were defeated. The last judge pointed out that Law 12,973, despite having prohibited a series of requirements to define the non-taxation of investment subsidies, did not repeal the article that regulates subsidies for funding.
Matosinhos also pointed out that the caput of article 30 of Law 12,973 defines that investment subsidies “given as a stimulus to the implementation or expansion of economic enterprises” do not make up the calculation of Real Profit. For him, it would not be the case of the benefit from Paraíba.
The process is 10480.725593/2015-11.