A (in) constitucionalidade da inclusão do ICMS na base de cálculo do IRPJ e da CSLL no regime do lucro presumido

Abstract

The main objective of the present paper is to show how the tax on the circulation of goods and transport services (ICMS) is included in the calculation basis of corporate income tax (IRPJ) and social contribution on net income (CSLL), in the case of companies opting by the Presumed Profit method and also unravel whether this inclusion, performed by the tax authorities, would be constitutional or unconstitutional. To this end, a doctrinal, normative and jurisprudential approach was taken in order to define from which holder the ICMS could be considered a revenue, if it comes to integrate definitively into the taxpayer's assets or if it would be merely a depositary of the tax or even a tax collector. The answer to this question is essential to define the legal consequences that are legally admissible, including admitting or rejecting the inclusion of ICMS in the calculation basis of certain taxes - notably the IRPJ and CSLL - but considering only the legal entities opting for the presumed profit method.