STF judges billionaire case on transfer of ICMS credits from companies

The ministers of the STF (Federal Supreme Court (STF) have begun to judge a case that may have a billionaire impact on the cash flow of companies and that concerns the use of credits related to the collection of ICMS (Tax on Circulation of Goods and Services) in the transfer of a product from one state to another between the same company.

One of the sectors that can be most impacted is retail, which is organized between distribution centers that send products to stores in several states in Brazil and that use tax credits to deduct charges in different states.

The STF is currently discussing, on trial in the virtual plenary, the moment of validity of the April 2021 decision that overturned this type of ICMS charge, after questioning presented by Rio Grande do Norte.

The state appealed with the objective of clarifying points of the previous decision because the judgment has a direct impact on cash flow.

According to tax lawyer Eduardo Muniz Cavalcanti, partner at Bento Muniz Advocacia, “specifically for retailers, it is estimated a potential loss of R$ 5.6 billion per year”.

The case began to be analyzed last Friday (10) and will continue until this Friday (17) in the virtual plenary. So far, eight of the 11 ministers have already voted. The analysis may be interrupted if any of the ministers asks for a highlight, which would lead to the trial starting over from scratch in the face-to-face plenary.

For the rapporteur of the action, Edson Fachin, the effects of the decision —the so-called modulation— will be generally effective from the 2023 financial year.

Minister Fachin also understood that, if the deadline expires without the states having disciplined the transfer of ICMS credits between establishments of the same holder, “the right of taxable persons to transfer such credits is recognized”.

Fachin highlighted in his vote that the interstate transfer of merchandise between establishments of the same legal entity is therefore equivalent to a mere physical movement, as occurs in the case of transfers of stocks between stores of the same network.

Carmen Lúcia, Ricardo Lewandowski and Luís Roberto Barroso aligned themselves along this line of judgment.

Minister Dias Toffoli opened a divergence and voted to grant a longer period, of 18 months from the judgment of the appeal initiated on Friday, so that a complementary law is enacted by the National Congress in relation to the credits and other necessary legal adjustments are made on the subject.

So far, ministers Alexandre de Moraes, Nunes Marques and Luiz Fux have accompanied Toffoli.

LAWYERS ASSESS

Cavalcanti, from the Bento Muniz Advocacia office, cited opinions from Via, owner of the Casas Bahia and Ponto chains (formerly Pontofrio) which indicate that the STF decision directly impacts the cost of retailers and the final prices of goods.

According to Via’s thesis, cited by Cavalcanti, credit accumulated in a given state cannot be used as tax debits in other states, generating an accumulation of credits that are difficult to use.

The same understanding is cited by Mariana Valença, a tax lawyer at Murayama & Affonso Ferreira Advogados, who states that the ban on appropriation and the requirement to reverse ICMS credits in these cases is unconstitutional.

“The lack of modulation could generate several losses for taxpayers, including legal discussions questioning past operations, and taxpayers may suffer tax collection notices or file lawsuits to guarantee the right to appropriation and maintenance of ICMS credits”, said Valença.