The Plenary of the Federal Supreme Court (STF) declared unconstitutional sections of the Pará ICMS regulation that sought to guarantee tax incentives to the state's industries of industrialized products derived from wheat flour (pasta, cookies, crackers and bread).
The virtual trial of ADI 6,479 was concluded last Friday (18/6). The understanding of the rapporteur, Minister Cármen Lúcia, prevailed unanimously, that the government of Pará privileged establishments located in the state that operate in the industrialization of wheat and derivatives.
Created by State Decree 4,676/2001, the ICMS regulation instituted tax substitution in wheat import operations (in grain, flour and mixture) and assigned industrial establishments the responsibility for withholding and collecting ICMS in subsequent operations.
Furthermore, the calculation basis was reduced to 7% of the tax burden, and the exemption from tax collection on internal sales of products was also provided for.
The case under analysis was taken to the Supreme Court by the Attorney General of the Republic. Augusto Aras argued that the tax benefit violates constitutional provisions that provide for the enactment of a specific law to grant any type of tax relief (article 150, paragraph 6) and the prior execution of an agreement (article 155, paragraph 2, item XII, item “g”).
Carmen Lucia agreed with the PGR. In addition to the need for a specific law to grant the benefit, the minister stated that the Constitution also requires a law “to assign to the passive subject of a tax obligation the responsibility for the payment of tax whose taxable event must occur later” (article 150, paragraph 7).
The adoption of a different tax treatment based on the origin of the goods, according to the rapporteur, violates the principles of equality and non-discrimination based on the origin or destination of goods and services (article 152 of the Federal Constitution).