On August 8th, the 1st Chamber of the Superior Court of Justice (STJ), unanimously, upheld the incidence of Corporate Income Tax (IRPJ) and Social Contribution on Net Income (CSLL) on late payment interest received by a taxpayer due to contractual breach. Supported by the other ministers, Minister Rapporteur Benedito Gonçalves, in his vote, understood that the amounts in question have the “nature of lost profits” (AgInt in REsp 2,002,501).
One of the points raised by the taxpayer was that the appealed ruling did not take into account the thesis established by the Federal Supreme Court (STF) in Theme 962, judged months before the Special Appeal. The understanding of the Supreme Court at the time was that it would be “unconstitutional the incidence of IRPJ and CSLL on amounts related to the Selic rate received due to tax overpayment,” since they would have the nature of emerging damages, without representing an effective increase in assets to the taxpayer.
In light of this argument, the taxpayer argued that his case closely resembled that previously decided by the Supreme Court, since late payment interest would also have a merely compensatory nature. However, during the trial of the case at the 20th Ordinary Session, Min. Benedito Gonçalves stated that “Theme 962, from the Supreme, did not change the understanding of this Court,” maintaining the jurisprudence of both Chambers of the STJ on the subject.
In this case, the position adopted by the Court in the April ruling of this year was maintained, in which the First Section of the STJ had the opportunity to comment on the effects of the most recent understanding of the Supreme. According to the ruling in REsp 1,138,695, published in DJe on 5/8/2023, the First Section, unanimously, in a retraction judgment, decided that, although Theme 505/STJ (which dealt with the SELIC) should be adapted to the new paradigm, “[…] all other repetitive theses adopted by the STJ regarding the incidence of IR and CSLL on late payment interest remain preserved.”
On the occasion, Min. Rapporteur Mauro Campbell emphasized the maintenance of Theme 878/STJ, which states, among other assertions, that “1.) As a general rule, late payment interest has the nature of lost profits, which allows the incidence of Income Tax […]”. In this way, the STJ admitted the non-incidence of IRPJ and CSLL only on amounts related to the Selic rate received due to tax overpayment, maintaining the understanding regarding the incidence in relation to other similar amounts.
One of the arguments used by the STJ ministers for this was that the Supreme Court’s decision sought to delimit its scope of incidence as much as possible, according to the vote of Min. Dias Toffoli: “it goes beyond this theme to define the legal nature of interest related to judicial deposits or interest agreed in contracts between individuals. In this vein, it is important to highlight, for example, that it was not the subject of the present demand to know, case by case, whether the payment of the Selic rate due to a contract between individuals is intended for capital remuneration and whether IRPJ and CSLL can be levied on such payment.”
For our partner, Onofre Batista: “Despite the nuances between the cases judged by both courts, it is undeniable that they have characteristics that closely resemble each other. Just like the Selic interest, late payment interest also clearly represents an object of compensation, therefore lacking the remunerative character necessary to attract the incidence of IRPJ and CSLL. The most recent decisions of the STJ represent a clear misalignment of the understanding of the Supreme, becoming capable of provoking, in the future, a scenario permeated by uncertainties in the Superior Courts.”