Evasion or Avoidance: Jurisprudence as a Subsidy to Legitimate Tax Planning and Interpretation of Law

Leniz Jesus de Sena; Cleyson Santos

DOI: 10.22167/2675-6528-202603135

Article derived from a Final Course Work (TCC), with content based on the student’s original work and adapted to the editorial format of the E&S Magazine with the support of the ResumeAI tool, an artificial intelligence solution developed by the Pecege Institute for textual synthesis and organization.

Abstract

The research pragmatically addressed tax planning measures under jurisprudence. Its objective was to guide legitimate tax avoidance practices and risk contingency, developing a practical technique for studying decisions. Decisions from the Supreme Federal Court (STF), Superior Court of Justice (STJ), and Administrative Council of Tax Appeals (CARF) from the last ten years were considered, focusing on Goods and Services Circulation Tax (ICMS) subsidies and their impact on the calculation of federal taxes. The decisions were qualitatively analyzed, categorizing the line of understanding, recurrence, reasons for interpretation, reasoning, and impact on taxpayers. The results found that jurisprudence, especially EREsp 1.517.492/PR, consolidated the understanding that presumed ICMS credits do not integrate the calculation base of Corporate Income Tax (IRPJ) and Social Contribution on Net Profit (CSLL), due to the federal pact. For other ICMS tax benefits, the exclusion from the IRPJ and CSLL calculation base depended on the fulfillment of legal requirements, such as the constitution of a tax incentive reserve. Divergences were observed regarding the incidence of PIS and COFINS, pending definition by the STF (Theme 843), and the requirement of formal conditions. The research demonstrated the importance of jurisprudential analysis for legal certainty and risk mitigation in tax planning.

Keywords: ICMS; IRPJ; Legality; Subsidies.

1. Introduction

The Brazilian tax scenario is marked by legislative complexity that imposes significant challenges for companies in managing their fiscal obligations. In this context, tax planning emerges as an essential tool for cost optimization and ensuring legal compliance. The distinction between legitimate tax avoidance practices and evasion, which constitutes tax illegality, is a critical point that requires constant attention and precise interpretation of the law.

Jurisprudence, both judicial and administrative, has been employed as a fundamental interpretive source to navigate this complexity. According to the Code of Civil Procedure of 2015 (Law No. 13.105, art. 927) and the National Tax Code (Law No. 5.172, art. 96), the analysis of court decisions allows for the standardization of controversial issues and the filling of legal gaps, consolidating understandings that serve as support for the defense of theses and rights. This approach provides a thorough legal understanding of the analyzed matter.

The need to differentiate lawful tax planning from evasive tax planning was reinforced by the judgment of the Direct Action of Unconstitutionality (ADI) No. 2.446, of April 27, 2022. This decision, which analyzed the scope of the sole paragraph of art. 116 of the National Tax Code (CTN), established that the fight must be exclusively against illegitimate practices, characterized by the absence of intent, simulation, or fraud by the taxpayer. Thus, the deliberations issued from this milestone became objective guidelines for discerning between fiscal economy and illicit acts.

Despite the relevance of jurisprudence, the criteria for analyzing decisions in tax planning are not always systematized in specific doctrine. However, the study of these precedents, especially those issued by the Supreme Federal Court (STF), the Superior Court of Justice (STJ), and the Administrative Council for Tax Appeals (CARF), offers an eminently operational purpose. It aims to translate, clearly and applied, the benefits of a routine of studying jurisprudence for the construction of theses and operational scenarios that promote greater legal certainty and assertiveness in risk mitigation.

A contemporary and recurring theme in the daily lives of companies that illustrates the importance of this analysis is the subsidies of Tax on Circulation of Goods and Services (ICMS) and their impacts on the calculation of federal taxes, such as Corporate Income Tax (IRPJ), Social Contribution on Net Profit (CSLL), Program for Social Integration (PIS), and Contribution for the Financing of Social Security (COFINS). The way these tax incentives are treated directly impacts revenue collection and can generate both legitimate tax savings and tax risks, depending on the conduct adopted and the applicable legal interpretation.

Given this scenario, the present research is justified by the need to offer practical subsidies for decision-making in tax planning, aligning with legality and the interpretation of law. The objective of this study was to develop a practical technique for studying decisions for the analysis and planning of controversial or widely debated tax issues, based on the legality that court deliberations have provided.

2. Material and Methods

The research conducted was characterized as exploratory and explanatory, being carried out through the study of decisions issued by courts in practical cases. This methodological approach aimed to provide support for the practice of jurisprudential study as an operational technique and tool, aligning, inclusive, with a measure of tax compliance.

The research strategy included documentary analysis of decisions from the Supreme Federal Court (STF), the Superior Court of Justice (STJ), and the Administrative Council for Tax Appeals (CARF). Complementarily, a bibliographic search was conducted based on doctrine, legislation, and articles pertinent to the matter, according to the works of Gomes (2023) and Schoueri (2010).

Data collection was carried out by consulting the jurisprudence repositories available on the websites of the STF, STJ, and CARF. As an initial protocol, priority was given to decisions issued after the judgment of Direct Action of Unconstitutionality (ADI) No. 2.446, of April 27, 2022, which was reported by Minister Carmen Lúcia.

This judgment aimed to analyze the scope of the sole paragraph of art. 116 of the National Tax Code (CTN), with the purpose of ensuring minimal legal certainty. The ADI authorized legitimate tax planning by asserting the exclusive combat of illegitimate practices, establishing an objective guideline for discerning between fiscal economy and illicit acts.

Decisions rendered in the last ten years were prioritized, with an emphasis on the most recent ones, aiming to reflect contemporary scenarios in which substantive law was still subject to claim, in light of the institute of forfeiture. The theme chosen for analysis consisted of subsidies for the Tax on Circulation of Goods and Services (ICMS) and their effects on the calculation of federal taxes.

For the search in the jurisprudence repositories, words and symbols were typed that allowed for greater assertiveness and restricted the scope of the research. Terms such as “legality”, “subsidies”, “ICMS” and “IRPJ” were searched in this arrangement, interspersed by the expressions “and” and “or”, to attract all words in the same document or terms that could appear alternatively.

The searched words returned highlighted, which facilitated visualization and allowed focus on the summaries or abstracts of decisions that aligned with the study. Four cases from each court were dealt with by sampling, specifically related to ICMS subsidies on the base of federal taxes.

The data analysis was performed qualitatively. The decisions were categorized regarding the line of understanding, recurrence, reasons for interpretation, justification, and impact on taxpayers. This procedure ratified the importance of jurisprudence in the interpretation of law.

The technique for studying jurisprudence used was described by Melo (2025) as “Distinguish”, a model inherited from England and employed in other countries. This technique consisted of analyzing and interpreting the law not only with the aid of statutes but also in light of jurisprudence.

It was observed that the greater the adherence of a topic to a judicial precedent, the greater its use, and when used, it could assist in planning strategy, corroborating in risk mitigation. The technique was substantiated in the action strategy that supported the planning, based on the analysis of judgments of similar cases.

In the study, the technique involved two interpretations: by comparison between the actual case and the paradigm, called the “distinguish method”; and by result, through the confrontation of divergences by analyzing the results, called the “distinguish outcome”. Thus, even if the actual case differs from the one studied, it was possible to establish the concept of the

ratio decidendi

, emanating from the precedent.

For the organization of the data collected in the analysis of the jurisprudence, the most relevant points in each court were addressed and the results were aligned where they presented convergent points. The goal was to map the reasons for the decisions studied, consolidating the technique in light of the interpretation, and, finally, support tables were created for the analysis of the subject matter.

Various sources were used, in addition to the rulings of the STF, the STJ, and the CARF, namely: the National Tax Code (CTN), the Constitution of the Federative Republic of Brazil of 1988 (CF/1988), the Brazilian Civil Code (C.C.), Complementary Laws (L.C.), Ordinary Laws, doctrine, and publications pertinent to the matter.

3. Results and Discussion

The research undertook an in-depth analysis of jurisprudence to delineate the boundaries between tax avoidance and tax evasion, providing subsidies for legitimate and secure tax planning. The findings revealed that the interpretation of decisions from superior courts and the administrative tax council is crucial for risk mitigation and cost optimization, especially regarding the subsidies for the Tax on Circulation of Goods and Services (ICMS) and their repercussions on federal taxes. The adopted methodology, focused on precedent analysis, allowed for the identification of patterns and grounds that guide taxpayer conduct and the actions of supervisory bodies.

Initially, the study consolidated the understanding that tax planning represents the taxpayer’s right to structure their operations in a way that legally reduces the tax burden, provided that the formal and substantial requirements of the law are observed. This perspective aligns with the teaching of Borges (2012), who emphasizes the need for valid and legitimate actions. In contrast, tax evasion was characterized as illicit economy, resulting from non-compliance with laws or the use of fraudulent means, while tax avoidance is defined as lawful conduct to prevent the occurrence of the taxable event, thus avoiding the incidence of the tax rule, according to Gomes et al. (2023).

Jurisprudence, both judicial and administrative, has proven to be a fundamental pillar for legal certainty. At the Supreme Federal Court (STF), the institute of general repercussion, established by Constitutional Amendment No. 45/2004, plays a crucial role, as it suspends similar cases until a theme is established, whose judgments have a multiplier effect and *erga omnes*, binding all citizens and public authorities. This prerogative of the STF ensures uniformity in constitutional interpretation and the stability of the legal system.

Similarly, in the Superior Court of Justice (STJ), repetitive appeals, established by Law No. 11.672/2008, aim to materialize the principles of procedural speed, equality, and legal certainty. The selection of cases by sampling, carried out by the president or vice-president of the originating court, allows the STJ to establish a binding thesis, guiding the lower instances. This system is vital for the unification of infraconstitutional law, providing greater predictability and assertiveness in the application of tax regulations and in the management of taxpayers’ rights.

In the administrative sphere, the Administrative Council of Tax Appeals (CARF) focused its analysis on concrete situations, seeking to identify contexts of abuse of right, fraud, or simulation. CARF’s performance, when examining tax planning, remained faithful to these foundations, corroborating the importance of jurisprudential analysis for the Brazilian Federal Revenue Service (RFB). The RFB, in turn, also uses jurisprudence, including binding precedents, constitutional review lawsuits (ADIs), and consultation and divergence rulings, to consolidate understandings within its sphere of competence, according to Law No. 10.522/2002.

The technique for studying jurisprudence, described by Melo (2025) as “Distinguish”, has proven to be an effective model for interpreting the law not only based on statutes but also in light of judicial precedents. It was observed that the greater the adherence of a case to a precedent, the greater its utility in planning and risk mitigation strategies. This technique, based on the comparison between the concrete case and the paradigm (“distinguish method”) and the analysis of divergent outcomes (“distinguish outcome”), allows for the identification of relevant differences that justify distinct treatments, even in apparently similar situations.

One of the most significant findings of the research was the consolidation of the understanding regarding the exclusion of presumed ICMS credits from the calculation basis of Corporate Income Tax (IRPJ) and the Social Contribution on Net Profit (CSLL). EREsp 1.517.492/PR, judged by the First Section of the STJ, established the thesis that these credits do not constitute taxable income or profit for the beneficiary company. The *ratio decidendi* of this precedent was based on the structural premise that the Union cannot tax, directly or indirectly, the fiscal policy of another federative entity, under penalty of violating state autonomy and the federal pact.

Although EREsp 1,517,492/PR establishes clear jurisprudential guidance, its effectiveness does not imply automatic recognition of each taxpayer’s right. As this is an individual tax matter, the taxpayer may require an autonomous judicial measure, such as a separate lawsuit or a writ of mandamus, to enforce their right against the Union. The precedent, therefore, serves as a robust legal basis for the taxpayer’s claim, but it does not replace the specific judicial protection necessary for its application in contentious cases, shifting the debate to the constitutional level.

The Supreme Federal Court (STF), in turn, declined direct analysis of the matter in Theme 957 of General Repercussion (RE 1.052.277), qualifying it as an infraconstitutional issue. The STF argued that the presumed ICMS credit does not represent new wealth, but rather a state waiver, with no new value entering the taxpayer’s assets. Federal taxation of this “gain” would imply redefining the concept of income, contrary to the provisions of art. 43 of Law No. 5.172/1966, which reinforces the protection of federal autonomy.

The comparative analysis of STF judgments, such as Extraordinary Appeals (REs) No. 1414214 and No. 1452273, and Extraordinary Appeals with Leave to Appeal (AREs) No. 1347561 and No. 1458368, revealed different modes of action by the Court. The REs directly addressed the constitutional matter, delimiting the main legal issue and the decisive grounds based on a systematic interpretation of the Constitution, aiming for the harmonization of jurisprudence and legal certainty. These decisions offered normative parameters capable of guiding future judgments, with greater legal depth.

In contrast, the AREs demonstrated a more restrictive stance by the STF, focusing on procedural aspects, such as the absence of general repercussion or the impossibility of reexamining facts and evidence, or the existence of infraconstitutional matters. The *ratio decidendi* in these cases was limited to the inadmissibility of the appeal, without innovating on the constitutional merits. This distinction showed that, while the REs allowed for the formulation of qualified precedents, the AREs functioned as competence filters, with a more limited and notably defensive character.

In Topic 1.182, the STJ analyzed the possibility of extending the exclusion of presumed ICMS credits to other ICMS tax benefits, such as exemption, deferral, and calculation base reduction. The Court decided that, for these other benefits not to be taxed by IRPJ and CSLL, the taxpayer should comply with the requirements set forth in art. 30 of Law No. 12.973/2014. Additionally, it was not necessary to prove that the benefit was granted as an incentive for the implementation or expansion of an economic undertaking, it being sufficient that the ICMS tax benefit was accounted for as a reserve.

The controversy over the incidence of PIS and COFINS on presumed ICMS credits was addressed in STF Theme 843, which discusses the possibility of excluding these amounts from the tax base of the contributions. This constitutional issue aligns directly with STJ Theme 1.182, as both problematize the legitimacy of federal taxes on state tax benefits, in light of the federal pact. The thesis to be established by the STF has the potential to harmonize the constitutional understanding with the already consolidated infraconstitutional jurisprudence, defining the limits of federal taxation on presumed ICMS credits and their effects on the concept of revenue or turnover, although it is still pending definition.

The analysis of CARF’s administrative jurisprudence demonstrated consistency with the STJ’s understanding in EREsp 1.517.492/PR regarding presumptive credit. For other ICMS tax benefits (exemption, calculation base reduction, rate reduction, deferral), CARF strictly aligned itself with STJ’s Theme 1.182, recognizing their nature as investment subsidies. The oversight by the Brazilian Federal Revenue (RFB) was validated to verify compliance in the use of resources, focusing on ensuring the viability of the undertaking, which proved to be a sensitive point in the application of the rules.

The CARF rulings, such as Rulings 1003-004.486, 1401-007.536, and 1003-004.300, allowed for the identification of compliance patterns in the qualification of ICMS presumed credit, resulting in the exclusion of IRPJ/CSLL. The rigorous application of STJ’s Theme 1.182 was observed for other tax incentives and the control of the destination of reserve amounts, including after Complementary Law No. 160/2017. This demonstrated that the CARF extended the debate from the legal and constitutional level to the accounting and operational level, recognizing the impacts of the Federal Pact and preserving its oversight role.

The comparison between the courts revealed that, for the presumed ICMS credit, the STF considered the infraconstitutional issue and the federal pact as the basis, while the STJ and CARF focused on the exclusion from the IRPJ/CSLL base, with the STJ adopting constitutional premises and CARF a strictly administrative approach. For the other ICMS incentives, the STJ and CARF converged on the need to comply with the requirements of art. 30 of Law No. 12.973/2014 and LC No. 160/2017 for the exclusion from the IRPJ/CSLL base, while the STF did not rule on them directly.

Regarding operational impacts for companies, the research indicated that, for the ICMS presumed credit, there is no time limit for its exclusion from the IRPJ/CSLL base, and the calculation of PIS/COFINS comprises the base, awaiting the judgment of STF Theme 843. For other ICMS incentives granted until December 31, 2023, the exclusion from the IRPJ/CSLL and PIS/COFINS base depends on the constitution of a tax incentive reserve and its allocation according to the law, requiring adequate accounting and tax records.

Starting January 1, 2024, with Law No. 14.789/2023, the treatment of other ICMS incentives has undergone changes. Although these amounts will now be part of the IRPJ/CSLL calculation base, the new legislation provides for the generation of a tax credit of 25% on the subsidy amount, and the incidence of PIS/COFINS will now be taxed. This change requires companies to monitor jurisprudence and demonstrate and maintain timely accounting records of the incentive reserve, in order to prevent risks and ensure compliance with the new legal framework.

In summary, the research demonstrated that jurisprudence, particularly EREsp 1.517.492/PR, consolidated the understanding that presumptive ICMS credits do not form part of the tax base for IRPJ and CSLL, due to the federal pact. However, for other ICMS tax benefits, the exclusion from the IRPJ and CSLL tax base depended on the fulfillment of legal requirements, such as the constitution of a tax incentive reserve. Divergences were observed regarding the incidence of PIS and COFINS, pending definition by the STF (Theme 843), and the requirement of formal conditions, highlighting the continuous importance of jurisprudential analysis for legal certainty and risk mitigation in tax planning, especially in light of recent legislative changes.

4. Conclusion

The present study aimed to develop a practical technique for studying decisions for the analysis and planning of controversial tax issues, based on the legality provided by court rulings. It was found that jurisprudence, both judicial and administrative, has consolidated itself as an essential pillar for legal certainty and risk mitigation in tax planning. The findings revealed that the Superior Court of Justice, through EREsp 1.517.492/PR, established the understanding that the presumptive credits of the Tax on Circulation of Goods and Services do not form part of the calculation basis for Corporate Income Tax and Social Contribution on Net Profit, due to the federal pact. For other ICMS tax benefits, such as exemption and deferral, the exclusion from the calculation basis of these federal taxes depended on the fulfillment of legal requirements, such as the constitution of a tax incentive reserve, according to Topic 1.182/STJ. The jurisprudential analysis technique proved effective in interpreting the law in light of precedents, offering practical subsidies for decision-making and the construction of arguments that promote greater assertiveness and legal compliance.

However, it was observed that the effectiveness of precedent EREsp 1.517.492/PR does not imply automatic recognition of the right, and the taxpayer may need an autonomous judicial measure for its enforcement. Additionally, it was identified that the incidence of PIS and COFINS on presumed ICMS credits remains a constitutional controversy pending definition by the Supreme Federal Court in Theme 843. The research did not delve into the analysis of ICMS subsidies in light of Law No. 14.789/2023, which altered the treatment of these incentives from 2024 onwards, constituting a recent and developing topic. Therefore, systematic monitoring of jurisprudence and new regulations is suggested for continuous updates on the matter, in order to prevent risks and ensure compliance with the constantly evolving legal framework.

Bibliographic References

Borges, 2012 [Referência completa não encontrada no documento original]

Gomes, et al. 2023. Planejamento tributário sob a ótica do CARF: análise de casos concretos. 2 ed. Lumen Juris, Rio de Janeiro, Brasil, p. 316-317.

Melo, J. E. S. de. 2025. Precedentes tributários do STF e do STJ: análise das súmulas, repercussões gerais e repetitivos. Reflexões no âmbito da reforma tributária. Thomson Reuters Brasil, São Paulo, Brasil, p. 2–6.

Schoueri, L. E. 2010. Planejamento tributário e propósito negocial. Quartier Latin, São Paulo, Brasil, p. 20.

Article originating from the Final Course Work of the Specialization in Tax Management of the MBA USP/Esalq

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