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Understand Why the 2023 Decision Did Not Peacefully Implement the Use of Subsidies and Why Litigation Increased in 2024 and 2025
In May 2023, the Superior Court of Justice (STJ) established the thesis of Topic 1.182 and sought to resolve the dispute regarding the exclusion of ICMS tax incentives from the base of IRPJ and CSLL. However, the administrative environment did not align with the judicial guidance, which increased uncertainty. Although the Court structured clear parameters, the fiscal practice followed a different path.
The STJ ruled out the automatic extension of presumed credit of ICMS. In addition, it authorized the exclusion of other incentives when the Complementary Law 160/2017 and Law 12.973/2014 were observed. The registration in profit reserves began to assume the allocation for implementation or expansion. Thus, a direct and predictable operational procedure was created. Even so, the practical application did not reflect the understanding.
Administrative Investigations Expose Tensions Between Judicial Interpretation and Fiscal Practice
The STJ’s decision aimed to standardize the conduct of the tax authority. Therefore, many companies recorded subsidies in profit reserves already in 2023. In addition, they initiated requests for compensation and reimbursement. However, the Federal Revenue, between 2023 and 2025, adopted a different stance and intensified denials and fines.
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According to Alessandro Borges, from Benício Advogados, the agency requires additional evidence contrary to the understanding of the STJ. The Revenue requests specific statements regarding the use of subsidies in real expansion. Moreover, it demands proof that there was no passing of the benefit to the consumer. This requirement does not appear in the judicial thesis but has become a recurring fiscal practice.
The impasse grew with the late accounting registration. To exclude retroactive subsidies until 2024, many companies sought to record amounts from the previous five years. However, the Revenue’s system only allows rectification of the last ECD. Thus, retroactive registration became unfeasible. As a result, new fines arose, even when companies followed the jurisprudence.
Economic and Institutional Impacts of a Decision That Should Have Pacified the Legal Environment
The Insejur, developed by JOTA and Insper, revealed that 89% of large companies consider the tax system unstable. Furthermore, 65% state that legal uncertainty reduces investments. This environment reinforces the tension between the Revenue and taxpayers.
According to Marco Behrndt, from Machado Meyer, the conflict shows a clear picture of instability. The repetitive judgments should provide predictability. However, the requirements maintained by the tax authority force companies to choose between following the STJ at risk or following the Revenue at the cost of benefits.
For Marcelo Guimarães Francisco, from Mattos Filho, this scenario affects regional development, as state incentives reduce structural costs. Meanwhile, Lívia Dias Barbieri, from Pinheiro Neto, states that the administrative stance increases macro-litigation and delays important business decisions.
2025 Normatives Confirm Escalation of Litigation and Deepen the Distance Between STJ and Revenue
In 2025, the Revenue published Cosit 11/2025. The text reinforced additional requirements not provided for by the STJ. Additionally, it issued Consultation Solution 202/2025, which followed the same line. The agency stated that the declaratory appeals, rejected by Minister Benedito Gonçalves, confirmed the need for registration in profit reserves and appropriate allocation of the amounts.
The Carf, according to information from the Revenue, validated fines and penalized taxpayers for alleged accounting artificiality. Thus, litigation increased and tax audits intensified.
What Does the Future Hold for the Brazilian Tax Environment?
Topic 1.182, like major economic discoveries, triggered a legal rush that changed the tax environment. Therefore, the consolidation of the topic depends on institutional clarity, normative coherence, and efficient governance.
What do you believe should be a priority: to immediately apply the STJ thesis or to strengthen administrative controls over the use of state subsidies?
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