Presumed ICMS credit in the IRPJ and CSLL base.
What STJ Theme 1.416 puts at issue.

Three legal layers: the presumed credit, Theme 1.182 and Law 14.789

EREsp 1.517.492/PR — the favorable precedent

In EREsp 1.517.492/PR (STJ, 1st Section, 2017), the court excluded presumed ICMS credits from the IRPJ and CSLL calculation bases on the ground of the federative pact: federal taxation would reduce the effect of an incentive granted by a State. That reasoning did not depend on classifying the credit as an investment subsidy or on the conditions then contained in art. 30 of Law 12.973/2014. It is the central precedent for the taxpayer position, but Theme 1.416 is now pending precisely to settle the question under the repetitive-appeals procedure.

Theme 1.182 — other ICMS benefits

Theme 1.182 was judged by the STJ’s 1st Section on 26 April 2023, with Justice Benedito Gonçalves as rapporteur, and became final on 14 August 2024. Its first thesis holds it impossible to exclude the ICMS benefits — “redução de base de cálculo, redução de alíquota, isenção, diferimento, entre outros” — from the IRPJ and CSLL base, except where the requirements of art. 10 of Complementary Law 160/2017 and art. 30 of Law 12.973/2014 are met, and closes with an express carve-out: “não se lhes aplicando o entendimento firmado no ERESP 1.517.492/PR que excluiu o crédito presumido de ICMS das bases de cálculo do IRPJ e da CSLL”. The presumed credit was never the object of Theme 1.182 — the theme is about extending that earlier understanding to the remaining benefits, and it declined to extend it.

Law 14.789/2023 — the 1 January 2024 boundary

Art. 21, IV, of Law 14.789/2023 repealed art. 30 of Law 12.973/2014, and art. 22 provides that the law “entra em vigor na data de sua publicação e produzirá efeitos a partir de 1º de janeiro de 2024”. The repeal changed the statutory framework used for other ICMS benefits. Whether and how the new law affects presumed credits — whose treatment in EREsp 1.517.492/PR rested on a different rationale — is part of the question submitted in Theme 1.416. The periods before and after 1 January 2024 must therefore be analyzed separately.

STJ Theme 1.416 — what is actually pending in 2026

The question submitted to judgment

On 16 March 2026 the STJ recorded the affectation of Theme 1.416 to the repetitive-appeals rite, under Justice Regina Helena Costa, in REsp 2.221.127/PE, REsp 2.171.374/RS, REsp 2.188.361/RS and REsp 2.188.282/PR. The question submitted is to define whether presumed ICMS credits granted by the Member States as a tax incentive to a legal entity may be excluded from the IRPJ and CSLL calculation bases “nos regimes jurídicos anterior e posterior à Lei n. 14.789/2023” — that is, both before and after the repeal of art. 30 of Law 12.973/2014.

Suspension of appeals

The affectation carries a defined suspension order. According to the STJ record, the suspension covers Special Appeals and Interlocutory Appeals in Special Appeals at second instance and/or before the Superior Court of Justice, applying, at the STJ, the measure in art. 256-L of its Internal Rules. It is not a blanket statement that every administrative proceeding or first-instance lawsuit in Brazil is stayed. The affectation was approved by the 1st Section in the electronic session held from 4 to 11 March 2026. Theme 1.416 has not yet been decided.

What runs in parallel at the STF

The Theme 1.416 record also identifies constitutional proceedings that should not be conflated with the repetitive appeal. In Theme 957, the Supreme Court treated the controversy presented in that appeal as infra-constitutional and found no general repercussion. Separately, ADIs 7.551/DF, 7.604/DF and 7.622/DF challenge provisions of Law 14.789/2023. Those proceedings have different objects and procedural effects; their existence does not convert the still-pending STJ theme into a decided issue.

What is at stake in Theme 1.416 — scenarios, not forecasts

Outcome 1 — confirmation of EREsp 1.517.492/PR

The 1st Section may confirm, under the repetitive-appeals procedure, the treatment adopted in EREsp 1.517.492/PR and hold that presumed ICMS credits do not form part of the IRPJ and CSLL bases. That would consolidate the favorable precedent and clarify the significance of the express distinction written into Theme 1.182.

Outcome 2 — a cut at 1 January 2024

The Court may distinguish facts up to 31 December 2023 from the periods governed by Law 14.789/2023, which produces effects from 1 January 2024 (art. 22). The question submitted expressly covers both regimes because that temporal boundary is in dispute. For a company with recurring presumed credits, the two periods can produce materially different tax and accounting scenarios.

Outcome 3 — modulation of effects

The Court may be asked to address the temporal effects of its decision, but neither modulation nor its terms can be assumed before judgment. Filing an action does not, by itself, guarantee that a company will fall within any temporal protection the Court might eventually define. The decision model should therefore measure the company’s actual positions under more than one outcome rather than assign an unsupported probability to the case.

Which companies should map the issue

The trigger is the benefit actually granted, not the sector label

Theme 1.416 is relevant where a Brazilian legal entity actually receives a state ICMS presumed credit and that amount affects, or may affect, its IRPJ and CSLL computation. A sector name or regional-program label is not enough. The analysis starts with the state act, the company’s enrollment or concession instrument and the mechanics recorded in its ICMS returns.

• Manufacturers with a state-granted presumed-credit mechanism
• Agribusiness processors where the applicable state rules grant a presumed credit
• Pharmaceutical, automotive and consumer-goods companies only where the relevant state instrument creates that specific benefit
• Groups using more than one incentive, which must classify each benefit separately rather than aggregate them under one label

Regional federal incentives are not presumed ICMS credits

SUDENE and SUDAM incentives concern federal IRPJ rules, and the Manaus Free Trade Zone has its own constitutional and statutory framework. They are not interchangeable with a state presumed ICMS credit. A company operating under one of those regimes enters the scope of Theme 1.416 only to the extent that it also holds a separate state benefit that is, in substance and documentation, a presumed ICMS credit.

How to size the exposure

There is no useful market average or universal materiality threshold. The model starts with the presumed credit actually recorded by month, the treatment adopted in the ECF and ECD, and the IRPJ and CSLL effectively paid or not paid. It should separate periods before and after 1 January 2024, show principal and Selic adjustments separately, and identify amounts approaching the five-year period in art. 168, I, of the National Tax Code where a refund claim is under consideration. Since Complementary Law 236/2026, art. 168, paragraphs 2 and 3, separately applies the five-year period to the administrative recognition (habilitação) of a judicially recognized overpayment, counted in that setting from certification of the final judgment.

How to map your exposure now

Reconcile the state benefit with federal tax returns

The starting point is a digital tax audit of the open periods: reconcile the state ICMS records and SPED Fiscal with the ECF, ECD, general ledger and IRPJ/CSLL payments. The objective is to identify the presumed credits actually used and the accounting and federal tax treatment adopted in each period, not merely to search for a program name.

Documents that establish the benefit and the treatment adopted

The core file ordinarily includes: (i) the state law, decree, special regime or concession instrument; (ii) enrollment and adhesion records, where applicable; (iii) ICMS returns and calculation workpapers showing the presumed credit; (iv) ECF, ECD, ledgers and IRPJ/CSLL payment records; and (v) reconciliations between the state benefit and the federal tax computation. A subsidy reserve or evidence of investment allocation may be relevant to a different benefit and to the historical rules applicable through 2023, but it is not a universal condition to analyze the presumed-credit position.

Model both tax-paid and exclusion-claimed positions

The model should distinguish: (i) periods in which the company added the credit to taxable income and paid IRPJ/CSLL; (ii) periods in which it excluded the amount; and (iii) the prospective effect after 1 January 2024. Principal, Selic adjustments and any penalty scenario should be shown separately and linked to the company’s procedural posture. This provides a decision range; it does not predict the result of Theme 1.416.

Decision framework while Theme 1.416 is pending

Whether to litigate is a case-specific decision

A company may evaluate a writ of mandamus, a declaratory action or another procedurally suitable route while Theme 1.416 is pending. The decision depends on materiality, the treatment already adopted, evidence, open periods, jurisdiction and accounting consequences. Filing does not secure a favorable result or guarantee protection under any future modulation; waiting also has consequences where a potential refund period continues to age.

Classify each benefit before choosing a position

Complementary Law 160/2017 and art. 30 of Law 12.973/2014 form part of the historical framework applied to other ICMS benefits under Theme 1.182. Presumed credits were distinguished in that thesis, and their treatment is now before the STJ in Theme 1.416. A company holding more than one benefit should therefore classify each program by its legal act and economic mechanics, and analyze facts from 1 January 2024 separately under Law 14.789/2023.

Coordinate tax, accounting and governance decisions

For a foreign-controlled group, the local tax position should be translated into a governance record that the parent can use: amounts by period, legal basis, procedural status, evidence owner, accounting assessment and decision authority. The tax team, counsel, finance and external auditors may reach different conclusions for recognition, provision or disclosure purposes; the page does not prescribe one accounting result for every company.

How the TaxUp team acts on the presumed credit

Diagnosis: separating the presumed credit from the other benefits

The starting point is a technical reading of the benefits used by the company over the open periods, separating a presumed credit — the subject of the favorable precedent in EREsp 1.517.492/PR and the pending Theme 1.416 — from other ICMS benefits governed by the distinct framework addressed in Theme 1.182. The diagnosis also separates facts through 31 December 2023 from periods governed by Law 14.789/2023.

Assessment of potential refund claims

Where a company paid IRPJ and CSLL on presumed credits, the favorable precedent may support a claim for repetition of undue payment. The assessment must confirm the applicable periods, the five-year rule in art. 168, I, of the National Tax Code, the separate rule for administrative recognition after a final judgment in art. 168, paragraphs 2 and 3, the tax effectively paid, the available evidence and the effect of the still-pending Theme 1.416. It is not an automatic credit booking or recovery.

Procedural and monitoring plan

For periods from 1 January 2024, the team maps the company’s current treatment, evaluates available procedural routes with counsel and defines the evidence and monitoring controls required while Theme 1.416 remains pending. Any decision to litigate must be supported by the company-specific record; filing before judgment does not guarantee the result or any treatment the STJ may later give to temporal effects.