Tax · SPD Advocacia
Does your company have an ICMS presumed credit? The STF removed the benefit from the PIS and Cofins base
In October 2026, the STF (Brazil's Supreme Federal Court) concluded Tema 843 in favor of taxpayers. Companies with an ICMS (the state tax on goods and services) tax incentive may have overpaid PIS and Cofins (federal contributions on revenue) in recent years. For IRPJ (corporate income tax) and CSLL (social contribution on net profit), the rule depends on the period and the type of benefit.
PIS and Cofins
STF Tema 843
Thesis (free translation): "The inclusion of ICMS presumed credits in the calculation base of COFINS and of the PIS contribution is incompatible with the Federal Constitution" (RE 835.818, judgment concluded on October 7, 2026).
As of the date of this page, there has been no modulation of the effects. Since it may still be discussed in motions for clarification (embargos de declaração), the date of the claim may make a difference for those who want to recover amounts.
IRPJ and CSLL
Before and after Law 14,789/2023
The STJ (Brazil's Superior Court of Justice) decided that ICMS presumed credits are not part of the IRPJ and CSLL base, as that would violate the federative pact (EREsp 1.517.492/PR, First Section, 2017). For other ICMS benefits, such as base reduction, exemption and deferral, STJ Tema 1.182 only allows the exclusion when the requirements of art. 10 of LC 160/2017 (Complementary Law 160/2017) and art. 30 of Law 12,973/2014 are met.
Since January 1, 2024, Law 14,789/2023 revoked art. 30 of Law 12,973/2014 and created the investment subsidy tax credit, calculated at a 25% rate and used through offset or refund, subject to prior qualification (habilitação).
The STJ designated Tema 1.416 for a repetitive ruling to decide whether ICMS presumed credits may be excluded from the IRPJ and CSLL base before and after Law 14,789/2023, with proceedings on the matter suspended (designation published on March 16, 2026).
Requirements
What is reviewed
Grant act and type of ICMS incentive.
PIS, Cofins, IRPJ and CSLL for the last five years.
Lucro Real (actual profit), Lucro Presumido (presumed profit) or other.
Status under Law 14,789/2023.
Source: STF, Tema 843 (RE 835.818); STJ, EREsp 1.517.492/PR, Tema 1.182 and Tema 1.416; Lei 14.789/2023.
What is your case?
Situations the firm handles
Manufacturer with an ICMS presumed credit
Recovery of overpaid PIS and Cofins.
STF, Tema 843Wholesaler with a state incentive
Review of the contributions base.
STF, Tema 843Presumed credit up to 2023
Exclusion based on EREsp 1.517.492.
STJ, EREsp 1.517.492Base reduction or exemption up to 2023
Tema 1.182 requirements.
STJ, Tema 1.182Investment subsidy tax credit
Qualification and use.
Lei 14.789/2023IRPJ and CSLL lawsuit on hold
Monitoring of Tema 1.416.
STJ, Tema 1.416Step by step
How the firm works
- Fact-finding. Tax documents, calculations and benefits of the company over the last five years.
- Calculation. Estimate of the amounts with the accountants before any measure.
- Measure. Administrative claim or lawsuit, depending on the case and the thesis.
- Follow-up. Offset or refund and monitoring of the pending Temas.
Case review
Let us review your company benefit
Answer the questions, one at a time. At the end you can attach documents, which go straight to a folder in the firm's Drive, and send the summary via WhatsApp. Everything is protected by attorney-client confidentiality.
Common questions
Frequently asked questions
Who can recover PIS and Cofins under Tema 843?
Companies that received an ICMS presumed credit and included that amount in the PIS and Cofins base. The calculation depends on the figures for each period.
Did the STF limit the effects of the decision?
As of the date of this page, there has been no modulation. The point may still be discussed in motions for clarification.
What about IRPJ and CSLL?
Up to 2023, the presumed credit stays out of the base under the STJ position. After Law 14,789/2023, the issue is in Tema 1.416, which has not yet been decided.
Do you serve companies from other states?
Yes. The firm works throughout Brazil, with electronic proceedings and online meetings.
How does the engagement work?
After the review, the firm sends a written fee proposal, before any engagement.
Lawyer for ICMS presumed credits in PIS, Cofins and IRPJ
SPD Advocacia, based in Anápolis-GO, assists companies across Brazil that hold ICMS tax incentives, together with their accountants.
STF Tema 843
ICMS presumed credits are not part of the PIS and Cofins base.
IRPJ and CSLL
EREsp 1.517.492, Tema 1.182 and Tema 1.416 of the STJ define the treatment before and after Law 14,789/2023.
Informational content, in accordance with OAB (Brazilian Bar) Provision 205/2021. Each case depends on a review of the documents, and no result is promised.