In new declaratory appeals in ADC 49, taxpayers are asking the Federal Supreme Court (STF) to determine that, with the decision that removed ICMS from interstate transactions between establishments owned by the same owner, companies that did not collect the tax, whether or not they went to court to discuss the case, are not required to pay the amounts retroactively. This would prevent taxpayers who did not pay ICMS in transactions in recent years and do not discuss the issue in court or at the administrative level from being subject to charges by the states.<\/p>\n\n\n\n
In a judgment on the declaration of appeal concluded on April 19, the STF ruled that the decision that removed the ICMS from these transactions should take effect from 2024. In other words, the states can collect the tax until the end of 2023. The judges reserved administrative and judicial proceedings pending completion until the date of publication of the minutes of the judgment of the decision on the merits in the ADC, that is, April 29, 2021. In this case, taxpayers with a favorable administrative or judicial decision, in addition to not paying the ICMS in these transactions, will be entitled to the refund of amounts charged in the past, respecting the five-year prescriptive period for collecting the tax credit.<\/p>\n\n\n\n
In the new statement of clarification, reported by Justice Edson Fachin, the National Union of Fuel and Lubricant Distribution Companies (Sindicom) is asking the STF to clarify the ruling, in order to ensure that taxpayers who did not collect ICMS, whether or not they went to court, are not required to collect the tax retroactively. The entity argues that both the STF and the Superior Court of Justice (STJ) case law were unanimous in eliminating ICMS in interstate transactions involving establishments owned by the same owner.<\/p>\n\n\n\n
The union cited, for example, the judgment of Theme 1099 of the STF, in 2020. At the time, the Court established the thesis according to which \u201cICMS is not levied on the movement of goods from one establishment to another of the same taxpayer located in different states, since there is no transfer of ownership or performance of an act of merchandise\u201d.<\/p>\n\n\n\n
The entity also emphasizes that, before any pronouncement by the STF, the STJ issued Summary 166 in 1996. According to this statement, \u201cthe simple movement of goods from one establishment of the same taxpayer to another does not constitute a taxable event for ICMS\u201d. In 2010, the STJ reaffirmed this understanding in the judgment of Repetitive Theme 259, establishing a thesis identical to the summary.<\/p>\n\n\n\n
The union claims that taxpayers, by not collecting ICMS on these transactions even without taking the case to court, had a legitimate expectation and confidence in the case law established by the two higher courts. The entity points out that, after the STF ruled in April that the decision is valid from 2024, courts such as TJSP and TJMT have authorized states to collect ICMS in previous fiscal years.<\/p>\n\n\n\n
In the statement of clarification, the union asked the STF to clear up the obscurity to clarify that \u201cthe modulation of effects used in the specific case does not allow the collection of ICMS on the transfer of goods between establishments of the same taxpayer before 2024, in order to safeguard taxpayers who filed, or did not file, legal measures to avoid the collection of ICMS\u201d.<\/p>\n\n\n\n
Legal uncertainty<\/strong><\/p>\n\n\n\n Tax specialist Leonardo Gallotti Olinto, partner at Daudt, Castro e Gallotti Olinto Advogados, states that the case law that excludes ICMS in interstate transactions between establishments owned by the same owner is old, including the understanding established in Summary 166 of the STJ. Gallotti Olinto agrees that taxpayers who did not collect the tax based on this case law should not now run the risk of being charged by the states retroactively. The tax specialist states that this retroactive collection would violate article 24 of the Law of Introduction to the Rules of Brazilian Law (LINDB). According to this provision, it is \u201cprohibited that, based on a subsequent change in general guidance, fully constituted situations be declared invalid\u201d.<\/p>\n\n\n\n According to Gallotti Olinto, when the Supreme Court, in its April ruling, modulated the effects of the decision, the Court's intention was to prevent those who paid the tax from requesting a refund from the states. In his view, the Supreme Court's intention was not to allow the states to charge those who did not collect the ICMS in these transactions. For him, however, the new declaratory appeals further delay the final judgment of the decision (when no further appeals are possible), with an impact on taxpayers.<\/p>\n\n\n\n \u201cMany administrative courts are not applying the decision of ADC 49 on the grounds that it has not become final. Therefore, either the processes are halted or the decision is contrary, to the clear detriment of taxpayers,\u201d said Gallotti Olinto.<\/p>\n\n\n\n He also noted that, as the decision is not yet final, the order for the National Congress to legislate on the maintenance and transfer of credits is also not final, creating great legal uncertainty. In the April ruling, the STF decided that taxpayers will have the right to maintain and transfer ICMS credits to other states starting in 2024, with the states being responsible for regulating the matter.<\/p>\n\n\n\n