Senate approves ICMS collection regulation for sales between different states

The Senate plenary approved this Monday (20) a bill that regulates the collection of ICMS (Tax on Circulation of Goods and Services) on the sale of products and services in cases where the final consumer resides in a state other than where the item originated—for online purchases.

​The proposal had been approved in the Chamber of Deputies on Thursday (16), but federal deputies promoted changes and, therefore, a new vote in the Senate was necessary.

Senators have now approved the proposal by 70 votes in favor and none against — 41 votes were needed. The project goes to the sanction of President Jair Bolsonaro (PL).

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.

“This is already customary, the states that send the goods keep a percentage of the ICMS and the states that receive another percentage. But this regulation was done through an act of Confaz (National Council of Finance Police) and the Supreme The Federal Court understood that it should not be that way, that it should be a complementary law,” stated the author of the proposal, senator Cid Gomes (PDT-CE).

The rapporteur of the proposal in the Senate, Jaques Wagner (PT-BA), also stressed that the proposal does not promote changes and will not harm any state. However, small businesses that grew with online sales fear a possible tax increase.

“I insist that there is no loss for anyone, because this has been done for five years, we are just complying with the determination of the Federal Supreme Court in the sense that for the continuation of the collection this complementary law was necessary.

The Chamber of Deputies had made some changes to the original text by Cid Gomes to make it clear that Difal does not apply to individual passenger transport intended for non-taxpayers. The modification took place “given that, in this case, the final consumer is in the same state in which the service is considered to be provided, 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 the total ICMS due to the state of origin in operations and benefits whose recipient was located in another state and was not a taxpayer.

However, it was found that there were some distortions with the growth of e-commerce, online sales. This is because some states that are production and marketing centers started to centralize tax collection, which favored the tax war, as it encouraged states to offer tax benefits for the installation of distribution centers in their territories.

The Congress sought to resolve this issue through a 2015 constitutional amendment. The approved text defined that, in online purchases, the state of origin would only have the interstate ICMS rate, with the destination with the difference between its 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. As the rule would expire, the senators hurried and called an extraordinary session to vote on the amendments that had been promoted by the Chamber. That’s because the court had also determined that a supplementary law be published to allow the collection to continue from 2022.