Os Benefícios Fiscais do ICMS concedidos pelo Estado de Minais Gerais com fundamento no art. 75, XIV, da parte geral do RICMS e sua sujeição à tributação do IRPJ, da CSLL, da contribuição para o PIS e da Cofins

Abstract

The main objective of this work is to define the legal nature of the presumed credit tax benefit, generically proposed in article 75, item XIV, from the General Part of RICMS Regulation of Brazilian tax on the circulation of goods, interstate and intercity transportation and communication services (Decree no. 43.080, from 2002, December13th), when granted by the state of Minas Gerais conversely to the economic enterprises expansion or implementation, such as governmental subvention for investment, and, as so, since the corresponding value is properly accounted and controlled, its non-taxability by IRPJ (Legal Entity Income Tax), by the CSLL (SocialContribution above net profit), by PIS (Social Integration Program) and by Cofins (Contribution for Social Security Financing). The proposed study presents brief considerations about ICMS (Brazilian tax on the circulation of goods, interstate and intercity transportation and communication services) constitutional matrix, following for its consideration under the aegis of the complementary law no. 24, from 1975, January 7th, the Federal Senate resolution no. 22, from 1989, May 19th, article 225 from State Law no. 6.763 from 1975, December 26th, and article 75, XIV, from General part of RICMS, in order to demonstrate the tax policy adopted by Minas Gerais in the local economy defense and the instruments used in the Fiscal War context. After this, the presumed credit framework is practiced as a sort of governmental subvention, an institute ruled by the Decree no. 1.598/77, by the Income Tax Regulation and by thelaw no. 6.404/76, emphasizing the changes promoted by the laws nos. 11.638/2007, 11941/2009 and more recently the law 12.973/14, and CST (tax status code) legal opinions analytical object from Brazilian Federal Revenue. Finally, according to all legal framework and Brazilian Federal Revenue position, the necessary conditions to ICMS presumed credit non-taxability are set by the taxes identified above.