Minister André Mendonça, of the Federal Supreme Court (STF), suspended in an injunction (provisional) this Friday (13) clauses of a rule contrary to the law that established a single ICMS rate on diesel oil for all states, in reais per liter, charged only at the production stage.
Mendonça responded to a request from President Jair Bolsonaro (PL), presented through the AGU (Advocacy-General of the Union), which was trying to guarantee the reduction of ICMS on fuel provided for in a law passed by Congress in March, but the target of maneuver by the states to maintain the collection.
The rise in fuel prices is one of the factors that most pressures inflation, a problem that worries President Jair Bolsonaro (PL) in an election year. A Datafolha survey showed that 68% of Brazilians consider the representative responsible for the rise in prices.
This Thursday (12), the president said during his live that he would go to court to reduce the price of fuel. The statement came the same week that Petrobras readjusted the price of diesel and Admiral Bento Albuquerque was replaced by economist Adolfo Sachsida, a longtime ally of the president, at the Ministry of Mines and Energy.
Earlier this Friday night, during an event in Campos do Jordão (SP), Bolsonaro commented on the decision of the STF minister.
“There [no STF] I have two ministers nominated by me, so the chance is 20%. Heavenly Father helped us,” he said, referring to the fact that the action fell with Mendonça.
“Today [sexta] in the morning we filed the lawsuit, it fell with the minister André Mendonça, and with total exemption, he granted the injunction. So the ICMS on diesel has to be uniform throughout Brazil. There will be no more, I hope the plenary will ratify this, each state will have a percentage and also give you predictability in reducing their value “, he said.
The simple adoption of the unified ICMS, however, does not reduce prices, which would depend on the adopted rate. But the government is counting on the transition period, in which the rates would fall from the current ones, which have been frozen since the end of 2021.
Mendonça’s decision is valid as of now, but it was sent for the 11 members of the court to also analyze the case. There is no date yet for this to happen, however.
The law passed by Congress provided for a transition period, until the end of the year, in which states should set a rate equivalent to the average of the last 60 months, which would represent a drop in the current tax burden on fuel.
But, in a meeting at the end of March, Confaz (National Council of Finance Policy) decided to establish a single rate of R$ 1.006 per litre, allowing each state to give a discount to reach its current rate.
In practice, therefore, there was no change in the amount charged by state governments, which have been recording ICMS tax collection records on fuel. A price survey released this Friday showed that the price of diesel at pumps hit a record again in the country.
In addition to Bolsonaro, Senate President Rodrigo Pachedo (PSD-MG) criticized the decision of Confaz, which is made up of the 26 states, the Federal District and the Ministry of Economy.
“We were surprised when Confaz, on March 24, established a single rate for diesel at the highest level in force and allowed each federated entity to determine, at its discretion, a factor to equalize the tax burden. neutralized and emptied the objectives of the law,” said Pacheco in a letter sent to Minister Paulo Guedes (Economy), who is the president of Confaz.
Mendonça mentioned the criticisms in his decision.
“The relevance and urgency of the issue seems clear to me when it is verified that both the Chief of the Executive Power — the author of the present demand —, and the Head of the Federal Legislative Power — who urged Confaz to reanalyze the issue through the aforementioned Official Letter —, take care of the matter, manifesting themselves, each in their own way, for the necessary overcoming of the status quo, unaltered by the whipped norm”, said the minister.
When filing the request with the STF, the AGU said that Confaz “turned its back on the normativity” of the legislation and that the clauses created by the council’s rule “affronted the rules that gave it foundation, giving continuity to a dysfunctional taxation system , federatively asymmetrical and unfairly burdensome for the taxpayer”.
The government and the fuel sector argue that the model reduces tax complexity and the risk of fraud with the interstate sale of products.
The IBP (Brazilian Institute of Oil and Gas), which represents oil companies and fuel distributors operating in the country, released a note also defending the collection out of respect for the text approved in Congress.
“By disfiguring single-phase charging, the agreement [do Confaz] signals the maintenance of the current tax complexity, which stimulates the illegal market, and the competitive imbalance in the segment, which drives away investments”, he said.
The states, however, have always questioned the law, on the grounds that the government would be interfering with state laws and that the unification of ICMS would represent an increase in the tax burden in some states and a reduction in others.
In a note sent before the release of Mendonça’s injunction, Comsefaz (National Committee of Secretaries of the Treasury, Finance, Revenue or Taxation of States and the Federal District) stated that it had not yet been officially notified of the terms of the action.
The entity argues that the definition of a new single rate in reais per liter eliminated the need for the transition period, in which the charge should be made based on the average value of the PMPF (weighted average price to the final consumer) of the last 60 months.
“So far, states have already waived BRL 15.9 billion with the freezing of the PMPF between November 2021 and April 2022 and, if the measure is extended until December this year, the reduction of state budgets will be BRL 37 1 billion,” the committee said.
“Which means that, for the period, the federative entities are giving up about three and a half months of all fuel collection. These losses are shared with the municipalities, which also fail to receive 25% of ICMS.”
Collaborated with Paulo Eduardo Dias, from Campos do Jordão
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