States are accused of circumventing ICMS freeze by fuel sector

Distributors and gas stations complain that states are dodging the ICMS freeze by charging the difference between the fixed rate and higher prices at pumps.

In Paraná, companies in the sector obtained an injunction against the Treasury Department. In Santa Catarina, stations say that charging increases prices at pumps. The sector fears that, with the possibility of new adjustments, other states will adopt the strategy.

The ICMS freeze was announced in September to try to reduce pressure on fuel prices. Initially, it would be valid for six months, but in March the governors extended the measure until the end of June.

The states have frozen the reference value used to calculate the tax, which is called PMPF (weighted average price to the final consumer), revised every 15 days according to a price survey at gas stations.

With the measure, the value of PMPF in reais per liter stopped following the rise at pumps. But in some states, the tax may also be charged by the MVA (Value Added Margin), which is related to the actual selling price of the products.

Legislation determines charging the highest value between the two and, with higher prices at refineries and imports, the MVA is now worth more than the PMPF. In imports that arrived through Paraná, the difference between the two reached R$ 0.20 per liter.

With the MVA charge, the Sindicom (Union of Fuel and Lubricants Distributors) and importers went to court to guarantee the frozen rate.

Judge Eduardo Lourenço Bana, from the Unified Secretariat of the Courts of Public Finance of Justice of Curitiba, said in his preliminary injunction that the application of the MVA “causes disrespect to what was left established by Confaz [Conselho Nacional de Política Fazendária] and entails an offense to legal certainty”.

The government of Paraná says that the use of MVA was temporary, respecting the ICMS regulation in the state, and suspended after understanding Confaz, on April 13, about the use of PMPF while the freeze lasts.

In Santa Catarina, the gas station union questions the charge of an ICMS supplement on the difference between the pump price and the price of the PMPF frozen in September 2021. In the fuel sector, the tax is collected at the refinery, in a model known as tax substitution.

In a note, the state government claimed that this type of charge has occurred since before the ICMS freeze. “In 2021 alone, BRL 168,600,277.12 were returned in refund with effective credit transfer”, says the text.

When the tax charged at the refinery is greater than the final price, says the Treasury Department, the state returns the money.

To try to simplify the collection of the state tax on fuel, Congress approved in March, with the support of the federal government, a law that determines the adoption of a single rate in reais per liter, which would apply to all states.

In the case of diesel, a transition model should take effect in April, charging a rate equivalent to the average of the last 60 months. But state governments circumvented the determination by setting a maximum rate of R$ 1.006 per liter, with the possibility of discounts to maintain the current rate.

The strategy was criticized by Senate President Rodrigo Pacheco (PSD-MG) this Tuesday (3). In a letter sent to the Minister of Economy, Paulo Guedes, who presides over Confaz, he said that the model adopted does not meet consumer expectations and the determination of the legislator.

The rise in fuel prices after the hardest period of the pandemic boosted states’ cash. In 2021, the collection of ICMS from oil and fuel reached R$ 113.9 billion, in values ​​adjusted for inflation.

It is a 12.4% increase compared to 2019, before the start of the pandemic. In 2020, with the drop in prices and consumption, ICMS revenue totaled R$ 90.2 billion, also in corrected values.