As subvenções estaduais para investimentos no âmbito do ICMS a sua não-adequação à materialidade constitucional renda

Abstract

The receipt of income or earnings of any nature is subject to the collection of tax on the income of individuals and legal entities in Brazil, whose constitutional matrix finds its provisions in article 153, III, of the Federal Constitution. One of the main conflicts between the Federal Tax Authorities and Taxpayers regarding the collection of the aforementioned income tax lies in the qualification of the events and legal phenomena that would give the Tax Administration the right to collect this type of tax. In parallel to the scenario involving federal taxation, the States that make up the federation and the Federal District usually grant tax benefits related to the state tax that is levied on the circulation of goods and the provision of transport services, the ICMS. Such benefits, more often than not, result in a reduction in the balance due as a tax (when compared to the “ordinary/regular tax burden”) or, at least, change the form or timing of the collection of amounts to the state coffers. It is important to highlight that the granting of so-called tax benefits can be carried out by the taxing entity through various legislative tools and seek, in essence, to encourage certain relevant production chains so that goods and services can be accessed for lower values - such as food, hygiene and cleaning, clothing items and housing construction. In this context, there was a relevant legal-scientific doubt as to whether or not the values relating to ICMS benefits would give rise to the collection of tax on corporate income. Regarding this aspect, article 30, caput, of Law no. 12,973/2014 authorizes the exclusion of investment subsidies from the calculation base of corporate income tax as long as the donations received from the public authorities are used to create or expand the economic enterprise and that a profit distribution reserve is set up. In view of this, the present study, carried out to fulfill one of the requirements necessary to obtain a master's degree from the Pontifical Catholic University of São Paulo, has as its central objective to analyze whether the values related to ICMS tax benefits that do not fully comply of the requirements set out in article 30, caput, of Law no. 12,973/2014 adapt to the constitutional concept of “income” that may require the payment of tax on corporate income