The ministers of the 2nd Panel of the Superior Court of Justice (STJ), unanimously, upheld the decision of the Court of Justice of the State of Minas Gerais (TJMG) that recognized the validity of a rule that removes the ICMS exemption, in the purchase transaction carried out within the state, when the taxpayer sends the goods to an establishment of his/her ownership in another federative unit.
In practice, when purchasing goods on the domestic market, as a general rule, the company should pay ICMS. The state, however, deliberately grants an exemption to companies on this internal transaction. The taxpayer questions the legality of a law passed in 2017 removing the exemption.
In this specific case, the company Aliança Agrícola do Cerrado SA has a favorable decision that exempts it from highlighting and paying ICMS on the transfer of goods to establishments owned by it in another state. This was even before the STF decided, in April 2021, in the judgment of ADC 49, that ICMS is not levied on the transfer of goods between establishments owned by the same owner located in different states.
The problem, however, arose in 2017, when the state of Minas Gerais, through State Law 22796/17, defined that the ICMS exemption on internal transactions is waived when the buyer subsequently transfers the goods interstate to another establishment under the same ownership, without highlighting the tax on the invoice. In other words, the company, although it does not pay ICMS on the transfer of the goods, is obliged to collect the tax on the purchase of the goods while still in the state of Minas Gerais.
For the company, the Minas Gerais regulation violates article 3 of the National Tax Code (CTN), since it would be taxing an operation that was considered illegal by the state of Minas Gerais itself, that is, the transfer of goods without highlighting the ICMS on the invoice. In addition, the regulation would violate article 1 of Complementary Law 24/75, according to which ICMS exemptions must be granted or revoked under the terms of agreements signed by the states and the Federal District.
At the STJ, the rapporteur, Minister Mauro Campbell, had already denied the taxpayer's appeal through a single judge decision. Last Tuesday (14/2), the 2nd Panel, unanimously, denied the taxpayer's internal appeal, confirming the single judge decision.
Among other points, Campbell stated that the appealed decision did not address article 3 of the CTN and article 1 of LC 24/75, which means that the appeal is subject to Summary 211 of the STJ. According to this statement, “a special appeal is inadmissible regarding the issue that, despite the opposition of declaratory embargoes, was not considered by the Court below”. Furthermore, for the rapporteur, the Minas Gerais law did not repeal local legislation, but merely granted it an interpretation, to eliminate the exemption in cases where the goods are destined for other states.
“The ruling stated that the ICMS exemption for the acquisition of grains, in an internal transaction, does not apply when the purchaser subsequently makes an interstate exit. In other words, there was no revocation for internal transactions, but the court recognized that the acquisition of grains with exemption could not be sent to other establishments, even if under the same ownership, to another state, since this would be characterized as an internal transaction, which is covered by the tax benefit”, said the rapporteur.
Campbell also said that it is not up to the STJ, when analyzing a special appeal, to give a correct interpretation to local law, nor to verify the validity of local law before federal law (in this case, LC 24/75).
The decision was made within the scope of the REsp 1.988.409.