THE ICMS TAX INCENTIVES AS AN INVESTMENT SUBSIDY, UNDER THE TERMS OF COMPLEMENTARY LAW N. º 160/17. AN ANALYSIS FROM THE PERSPECTIVE OF THE COMPETITIVE NEUTRALITY, PRACTICALITY AND NON-RETROACTIVITY OF THE TAX NORM

Abstract

The benefits of the ICMS (Tax on Circulation of Goods and Services) as an investment subsidy are studied, according to Complementary Law no. 160/17. A qualitative, exploratory, bibliographical research of books, scientific articles, legislation and jurisprudence of the theme was elaborated. The effects of investment grants on the constitution of the calculation basis of Corporate Income Tax (IRPJ), Social Contribution on Net Income (CSLL), Social Integration Programs (PIS) and Contribution to Social Security Financing are discussed. (COFINS). The modifications of Law no. 160/17 in the characterization of ICMS incentives as investment subsidies, analyzing the position of the Federal Administration before the change, with the appreciation of Normative Opinion no. 112/1978 of the Federal Revenue Secretariat of Brazil (SRFB). It is established that the characterization of ICMS tax benefits as investment subsidies is compatible with the Constitution, provided that the requirements of art. 30 of Law no. 12.973 / 14, adding that the inadequacy of these incentives should be gauged on the basis of the specific case, the principle of competitive tax neutrality, equality and economic analysis of law. Given the principle of non-retroactivity of the harmful tax rule, it is proposed that art. 30, paragraph 5, of the above legislation applies to all taxpayers who have benefited from the modification, considering that the STJ, in the judgment of EDResp no. 1,517,492 / PR, stated that the presumed ICMS credits are not income or profit for purposes of IRPJ and CSLL, not being part of the calculation basis of these taxes, so that the amendment of art. 30, paragraph 4 of Law no. 12,973 / 14 embodied an existing beneficial understanding.