The Government is attempting to reclassify the Presumed Profit regime as a 'tax benefit' to justify an increase in the tax burden. Understand the unconstitutionality of the measure and how a Preventive Writ of Mandamus can shield your business.

Tax Team – Paulo & Bächtold.

The beginning of 2025 brought a heavy blow to medium-sized Brazilian companies. With the enactment of Supplementary Law No. 224/2025, regulated by Decree No. 12,808/2025 and Federal Revenue Normative Instruction No. 2,305/2025, the Federal Government implemented a revenue-raising maneuver that directly impacts companies opted for the Presumed Profit (Lucro Presumido) regime.

Under the pretext of promoting "spending cuts" and reducing tax expenditures, the new legislation imposes a real increase in the tax burden, requiring the advance collection of a surcharge on IRPJ and CSLL for companies with annual revenues exceeding R$ 5 million.

But, after all, is this collection legal? The technical answer is no.

The Government's Maneuver: Presumed Profit is not a Tax Benefit

The premise used by the Federal Revenue Service to justify this increase is that Presumed Profit would be a "benefit" or "tax incentive" and, therefore, would be subject to the benefit reduction rule provided for in the Constitution (Art. 165, §6º).

However, this interpretation directly contradicts the essence of Tax Law and the consolidated jurisprudence of the Supreme Federal Court (STF).

Presumed Profit is, in fact, an autonomous and legal method for determining the tax base (Art. 44 of the National Tax Code), created for reasons of tax practicability. A company that makes this choice assumes severe burdens, such as the impossibility of taking PIS and COFINS credits (cumulative regime) and the obligation to pay IRPJ and CSLL even if it records an accounting loss in the period.

Therefore, it is a synallagmatic regime (of trade-offs), and not a "favor" or "tax expenditure" granted by the State.

The Illegality of Quarterly Advance Payment

In addition to the error in premise, the Executive Branch exceeded its limits. Through a Decree and a Normative Instruction (infra-legal acts), the Federal Revenue Service innovated in the legal order to demand the advance quarterly collection of this surcharge.

The Superior Court of Justice (STJ) has established jurisprudence that Normative Instructions cannot restrict rights, create obligations, or increase the tax base (Principle of Strict Legality).

The Impact on Cash Flow and the Legal Solution

For companies within this scenario, submission to this unconstitutional exaction will represent an immediate and severe drain on cash flow as early as the next quarterly due dates.

The safest and most effective way to challenge this collection is by filing a Preventive Writ of Mandamus. Through this action, it is possible to request an injunction to:
1. Immediately suspend the enforceability of the IRPJ and CSLL surcharge;
2. Avoid the risk of tax assessments or fines from the Federal Revenue Service;
3. Ensure the maintenance of the Debt Clearance Certificate (CND), which is essential for business operations.

Furthermore, the legal action already protects the company’s right to future offsetting of the amounts, duly updated by the Selic rate, ensuring total legal certainty.

How can PBSA help?

The Tax and Corporate Law team at Paulo & Bächtold provides technical and detailed expertise in the defense of corporate assets. We have already mapped the unconstitutionality of Supplementary Law No. 224/2025 and developed a solid thesis, aligned with the precedents of the Superior Courts, to protect your company’s cash flow immediately.

If your company has opted for the Presumed Profit regime and generates annual revenue exceeding R$ 5 million, do not wait for the next tax due date.

Speak with our tax specialists and evaluate the feasibility of a Writ of Mandamus for your business.