The Chamber of Deputies approved this Thursday (16) a bill that regulates the collection of ICMS (Tax on Circulation of Goods and Services) on the sale of products in which the final consumer resides in a different state from the item’s origin, as it happens in online shopping, for example.
The bill was approved by 387 to 1. As it had changes, it goes back to the Senate.
The text deals with the transfer of Difal, the difference between the ICMS rate of the receiving state and the interstate rate of the sending state. The objective is to extend the transfer of Difal to operations in which the consumer is not a taxpayer — in general, individuals.
That is, that ICMS is not just concentrated on producing states and is also shared with states in which the final consumers are located.
The project’s rapporteur, Eduardo Bismarck (PDT-CE), recalls that the emergence of electronic commerce has changed consumer relations, causing an increase in online sales — in many cases, interstate — to replace purchases made in physical stores.
Bismarck states that, with this, states began to centralize ICMS collection as they are production and marketing centers and, with electronic commerce, they increased their sales to final consumers located in another state, in operations that, previously, “were mostly carried out by physical stores with ICMS collected at the respective state of destination”.
The rapporteur modified some points of the text approved by the Senate, making it clear that Difal does not apply to interstate passenger transport for non-taxpayers, “given that, in this case, the final consumer is in the state itself that the service is considered rendered, that is, the state of origin.”
Another device inserted seeks to establish general bases to make the relationship between state treasuries and taxpayers more transparent.
The calculation of ICMS due on interstate transactions intended for non-taxpayers will be carried out centrally. States shall make available, on their own website, information and technological solutions necessary for the taxpayer to comply with the main and ancillary tax obligations arising from these operations
Until 2015, the Constitution allocated to the state of origin the total ICMS due, in operations and benefits whose recipient was located in another state and was not a taxpayer.
However, with the strengthening of electronic commerce, federation units that are production and marketing centers began to centralize tax collection, which favored the tax war, as it encouraged states to offer tax benefits for the installation of tax centers. distribution in their territories.
To correct this problem, a constitutional amendment was approved by Congress in 2015. Through it, it was defined that, in these types of purchases, the state of origin would only have the interstate ICMS rate, with the destination with the difference between its rate internal and what was already charged at origin.
As a result, the units of the federation where the distribution centers of goods for electronic resale throughout Brazil are now prorating the ICMS with the destination states of these goods.
To regulate the amendment, Confaz (National Council for Finance Policy (Confaz) published an agreement still in 2015. Among other points, the text provided for rules for defining the calculation basis, responsibility for payment of each installment and method of calculating the ICMS belonging to the origin and destination states.
However, the STF (Supreme Federal Court) declared several clauses of the agreement unconstitutional and decided to allow the collection of Difal until December 31, 2021. The court also determined that a complementary law be published to allow the collection to continue from 2022 .
According to Bismarck, the project seeks to remedy a legislative gap left by this STF decision.
“If these rules are not published by a complementary law, there is no way to charge, as of January 1, 2022, the tax, which could represent a drastic reduction in ICMS collection”, he reinforced.
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