The National Council for Tax Policy (Confaz) published an agreement ending the mandatory transfer of ICMS credits in interstate transfer transactions of goods between establishments with the same ownership. In practice, this means that taxpayers will be able to choose to use the credits at the establishment of origin or transfer them for use at the establishment of destination, as they see fit. The changes are set out in ICMS Agreement 109/2024, the second rule issued by the council with the aim of aligning the credit transfer rules with Complementary Law (LC) 204/2023, which regulated the decision of the Federal Supreme Court (STF) in ADC 49.
According to tax experts, the agreement is positive for companies due to the end of the mandatory transfer of credits. However, lawyers criticized some points of the new regulation, such as the limitation on credits at the source and the limitation on the value of the transaction to define the ICMS calculation basis when the taxpayer chooses to treat the transaction as comparable to a taxable transaction.
The rule was published on Monday (10/7) in the Official Gazette of the Union, revoking Agreement 178/2023, which previously regulated this type of transfer. However, the changes will only be valid after the states incorporate the new agreement into local regulations through the enactment of laws.
In ADC 49, the STF ruled that ICMS is not levied on transfers of goods between establishments of the same taxpayer. Later, in the modulation, the Court ruled that companies could use the credits from these transactions. Congress issued LC 204 to define how the use of credits would work. Tax experts told JOTA that agreement 178, the first one issued by Confaz to comply with the law, required the transfer of credits, which is not in the interest of companies.
If a company carries out many taxable transactions, for example, it would be in its interest to keep the ICMS credits in the establishment of the state of origin, in order to take advantage of them. In the case of taxable transactions occurring in the establishment of the state of destination, the interest would be in transferring the credits.
Tax experts considered the end of the mandatory transfer of credits to be a positive point for companies. “The issue of non-mandatory transfer is an important point. It ends up being relevant for taxpayers because it actually opens up the possibility of interpreting that I can transfer the goods without necessarily transferring the credit”, says lawyer César Chinaglia, partner at Chinaglia Nicacio Advogados.
“[The new rule] has advanced reasonably in relation to the previous [agreement], as it ended up recognizing that the transfer of ICMS credits to the destination establishment is a right of the taxpayer and not an obligation, as provided for in agreement 178/2023”, says Caio César Morato, from Rayes & Fagundes Advogados Associados.
Restriction
However, some lawyers criticized the fact that the rule limits the taking of credits in the state of origin, by providing that the federation unit that sends the goods is obliged to guarantee the company, in the form of ICMS credits, only the difference between the credits related to the entry of the goods into the establishment and the ICMS rate on the transfer operation to the establishment located in another state. For Maurício Barros, partner in the tax area of Cescon Barrieu, in practice, by limiting the taking of credits in the state of origin, the agreement ends up forcing taxpayers to make the transfer to avoid losing them.
“[The rule] is saying: taxpayer, you have the right to transfer the credit, but the unit of origin is only obliged to guarantee the difference between what came in and what went out. In other words, if you do not transfer the credit, the state of origin will gloss over [prevent the use of the credit],” he said.
Lawyer Caio César Morato also believes that the section is not very beneficial to the taxpayer. “The first clause [of the agreement] states that the state of origin must guarantee only part of the credit, and not the entire credit of the transaction. In other words, it even allows you not to transfer, but you must determine a proportional amount [in credit],” he comments.
Lawyer César Chinaglia, however, notes that the agreement is merely reproducing what was already provided for in the supplementary law. “I am not saying that it is forcing the transfer, especially because this limitation is provided for in the Kandir Law [LC 87/1996, modified by LC 204, which regulated the transfer of credits within the scope of ADC 49]. The law itself only allows the credit to be maintained if there is a positive difference between the credits from previous operations and services and what was taxed in the transfer,” he commented.
According to item II of paragraph 4 of article 12 of LC 87/1996, as amended by LC 204/2023, ICMS credits will be guaranteed by the federated unit of origin only in the event of a positive difference between the input credits, that is, from previous transactions, and the transferred credit limited to the percentages of ICMS applied to the value of the transaction.
Taxable operation
The new agreement is also in line with the change in LC 204 with the overturning in June of the presidential veto on the possibility of taxpayers opting to tax ICMS transfer transactions, that is, opting to pay the tax. According to experts, some taxpayers prefer to levy the tax if they are entitled to a tax benefit, such as a presumed ICMS credit. For these taxpayers, paying the tax is more advantageous, since without the ICMS they would be prevented from enjoying the benefit.
Although the possibility of treating the transfer as equivalent to a taxable transaction has been provided for in law since the veto was overturned by Congress, in practice, the modality will only apply to states with regulation via an agreement and, later, with the enactment of local laws. One point criticized by tax experts in the Confaz rule was the limitation of the transaction value to define the ICMS calculation basis, if the taxpayer chooses this option. The fear, in this case, is that this limitation of the calculation basis will affect possible tax benefits.
However, for César Chinaglia, this should not occur, since the agreement provides, in paragraph 3 of clause six, that the use of the system “does not imply the cancellation or modification of the tax benefits granted by the federated unit of origin and destination”.
“When [the agreement] says that you can opt for a transfer equivalent to [the taxed transaction], it says that the use of this system does not imply the cancellation or modification of the benefit. It seems to me that the agreement itself provided for this possibility,” says Chinaglia.
For Adolpho Bergamini, partner at Bergamini Advogados, the possibility of equating the transfer of goods to a taxable transaction is the most advantageous point in the new agreement for companies.
“[For the taxpayer] it is better for the transfer to be taxed because it gives the freedom to set up the transaction based on this credit perspective. Some situations require the taxpayer to have taxable transactions. If you buy a fixed asset, for example, for ICMS purposes, you can take credit. If, in the month, I had 70% from taxable transactions and 30% not taxed, I will use this credit in proportion to the taxable transactions. If I could recommend, I would say to make this option [treating it as a taxable transaction], because it guarantees a flow of credits and some benefits”, he states.
Source: https://jota.pro/tributos/10430