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The legal treatment regarding the discount of interest on equity JCP in a period prior to the calendar year that generated the profit has been the subject of discussions and divergent positions in the Brazilian legal scenario considering the jurisprudence of the Superior Court of Justice and the Administrative Council for Tax Appeals Carf as well as the interpretations expressed by the Federal Revenue Service. The complexity of the issue lies in the interpretation of legal provisions that govern the deductibility of JCP especially when seeking to retroactive their accounting.

Brazilian legislation in its normative framework Phone Number Data provides for the possibility for companies to deduct amounts corresponding to interest on equity as long as the conditions and limits established by tax legislation are observed. However the discussion arises when considering the retroactivity of this tax benefit to periods prior to the calendar year that generated the profit subject to distribution.

The nd Panel of the STJ unanimously recognized the taxpayer's right to deduct when calculating real profit interest on equity for periods prior to the year in which the profit was calculated. The court understood that article of Law No. does not prohibit the right to extemporaneous deduction. The understanding was given in REsp No. . It is worth noting that this is the understanding of the st and nd Panel of the STJ. The interpretation of current legislation especially regarding article of Law No. which deals with the deductibility of JCP is crucial to understanding this scenario.

Even with the understanding consolidated in the STJ Carf and the Revenue understand that the permission to deduct JCP would be restricted to the calendar year in which the profit was actually earned. However it is worth highlighting that this interpretation is not unanimous in Carf as the Superior Chamber of Carf used the casting vote to rule out the taxpayer's understanding on the matter. In fact the reporting advisor cited decisions from the STJ that corroborated the favorable understanding for taxpayers.

Basically the controversy arises due to the provision of article of Normative Instruction No. which has the following provision:

The deduction of interest on own capital can only be made in the calendar year to which the limits referred to in the caput and item I of º refer.”

In other words a restriction imposed by the Revenue that is not included in the law causing the Federal Revenue to have exceeded its regulatory competence which would make the restriction illegal.



Furthermore it is worth highlighting that in some cases companies have sought alternative solutions such as the use of specific contractual instruments to substantiate the deductibility of JCP in past periods. The complexity of these operations requires careful analysis considering not only the tax aspects but also the contractual and accounting aspects involved.

Given this scenario the STJ will probably have to judge the issue using the rite of repetitive appeals which would bind Carf and the Revenue giving the legally due interpretation and providing more precise guidelines on the deduction of JCP in a period prior to the generating calendar year. of profit.

Until there is a standardization of understanding it is recommended that companies seek specialized legal advice to deal with this complex issue preventing future fines minimizing risks and ensuring compliance with current legislation.
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